EN BANC REPRESENTED BY HON.

TEODORO LOCSIN,
JR., RESPONDENTS.

[ G.R. No. 238875, March 16, 2021 ]

DECISION

SENATORS FRANCIS "KIKO" N.

PANGILINAN, FRANKLIN M. DRILON, LEONEN, J.:
PAOLO BENIGNO "BAM" AQUINO IV, LEILA
M. DE LIMA, RISA HONTIVEROS, AND
ANTONIO 'SONNY' F. TRILLANES IV, Treaties may effectively implement the
PETITIONERS, VS. ALAN PETER S. constitutional imperative to protect human rights
CAYETANO, SALVADOR C. MEDIALDEA, and consider social justice in all phases of
TEODORO L. LOCSIN, JR., AND SALVADOR development—but so can a statute, as Republic Act
S. PANELO, RESPONDENTS. No. 9851, the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and
Other Crimes Against Humanity, does.
[G.R. No. 239483, March 16, 2021]

The president, as primary architect of our foreign

PHILIPPINE COALITION FOR THE policy and as head of state, is allowed by the
INTERNATIONAL CRIMINAL COURT Constitution to make preliminary determinations on
(PCICC), LORETTA ANN P. ROSALES, DR. what, at any given moment, might urgently be
AURORA CORAZON A. PARONG, EVELYN required in order that our foreign policy may
BALAIS-SERRANO, JOSE NOEL D. OLANO, manifest our national interest.
REBECCA DESIREE E. LOZADA, EDELIZA P.
HERNANDEZ, ANALIZA T. UGAY, NIZA
CONCEPCION ARAZAS, GLORIA ESTER Absent a clear and convincing showing of a breach
CATIBAYAN-GUARIN, RAY PAOLO "ARPEE" of the Constitution or a law, brought through an
J. SANTIAGO, GILBERT TERUEL ANDRES, actual, live controversy and by a party that presents
AND AXLE P. SIMEON, PETITIONERS, VS. direct, material, and substantial injury as a result of
OFFICE OF THE EXECUTIVE SECRETARY such breach, this Court will stay its hand in
REPRESENTED BY HON. SALVADOR declaring a diplomatic act as unconstitutional.
MEDIALDEA, THE DEPARTMENT OF
FOREIGN AFFAIRS, REPRESENTED BY HON.
ALAN PETER CAYETANO, AND THE
On March 15, 2018, the Philippines announced its
PERMANENT MISSION OF THE REPUBLIC
withdrawal from the International Criminal Court.
OF THE PHILIPPINES TO THE UNITED
On March 16, 2018, it formally submitted its
NATIONS, REPRESENTED BY HON.
Notice of Withdrawal through a Note Verbale to
TEODORO LOCSIN, JR., RESPONDENTS.
the United Nations Secretary-General's Chef de
Cabinet. The Secretary General received this
communication the following day, March 17, 2018.
[G.R. No. 240954, March 16, 2021]

Through these actions, the Philippines completed

INTEGRATED BAR OF THE PHILIPPINES, the requisite acts of withdrawal. This was all
PETITIONER, VS. OFFICE OF THE consistent and in compliance with what the Rome
EXECUTIVE SECRETARY REPRESENTED BY Statute plainly requires. By this point, all that were
HON. SALVADOR C. MEDIALDEA, THE needed to enable withdrawal have been
DEPARTMENT OF FOREIGN AFFAIRS, consummated. Further, the International Criminal
REPRESENTED BY HON. ALAN PETER Court acknowledged the Philippines' action soon
CAYETANO AND THE PERMANENT after it had withdrawn. This foreclosed the
MISSION OF THE REPUBLIC OF THE existence of a state of affairs correctible by this
PHILIPPINES TO THE UNITED NATIONS, Court's finite jurisdiction. The Petitions were,
therefore, moot when they were filed.1 The Conversely, a treaty cannot amend a statute. When
International Criminal Court's subsequent the president enters into a treaty that is inconsistent
consummate acceptance of the withdrawal all but with a prior statute, the president may unilaterally
confirmed the futility of this Court's insisting on a withdraw from it, unless the prior statute is
reversal of completed actions. amended to be consistent with the treaty. A statute
enjoys primacy over a treaty. It is passed by both
the House of Representatives and the Senate, and is
In any case, despite the withdrawal, this Court ultimately signed into law by the president. In
finds no lesser protection of human rights within contrast, a treaty is negotiated by the president, and
our system of laws. Neither do we agree with legislative participation is limited to Senate
petitioners' implied statements that without the concurrence. Thus, there is greater participation by
treaty, the judiciary will not be able to fulfill its the sovereign's democratically elected
mandate to protect human rights. representatives in the enactment of statutes.

Moreover, the Senate never sought to enforce what The extent of legislative involvement in
would have been its prerogative to require its withdrawing from treaties is further determined by
concurrence for withdrawal. To date, Resolution circumstances attendant to how the treaty was
No. 249, which seeks to express the chamber's entered into or came into effect. Where legislative
position on the need for concurrence, has yet to be imprimatur impelled the president's action to enter
tabled and voted on.2 Individual senators have into a treaty, a withdrawal cannot be effected
standing to question the constitutionality of the without concomitant legislative sanction. Similarly,
actions of their chamber. Yet, in this case, as where the Senate's concurrence imposes as a
shown by the Resolution which petitioners co- condition the same concurrence for withdrawal, the
authored, they acknowledged that an action by the president enjoys no unilateral authority to
Senate was necessary before coming to this Court. withdraw, and must then secure Senate
Thus, no actual conflict or constitutional impasse concurrence.
has yet arisen even as implied by their actions.

Thus, the president can withdraw from a treaty as a

This Court cannot compel or annul actions where matter of policy in keeping with our legal system,
the relevant incidents are moot. Neither can this if a treaty is unconstitutional or contrary to
Court, without due deference to the actions of a co- provisions of an existing prior statute. However,
equal constitutional branch, act before the Senate the president may not unilaterally withdraw from a
has acted. treaty: (a) when the Senate conditionally concurs,
such that it requires concurrence also to withdraw;
or (b) when the withdrawal itself will be contrary to
a statute, or to a legislative authority to negotiate
Nonetheless, the President's discretion on
and enter into a treaty, or an existing law which
unilaterally withdrawing from any treaty or
implements a treaty.
international agreement is not absolute.

This Court resolves consolidated Petitions for

As primary architect of foreign policy, the
Certiorari and Mandamus under Rule 65 of the
president enjoys a degree of leeway to withdraw
1997 Rules of Civil Procedure, seeking to: (a)
from treaties. However, this leeway cannot go
declare the Philippines' withdrawal from the Rome
beyond the president's authority under the
Statute as invalid or ineffective, since it was done
Constitution and the laws. In appropriate cases,
without the concurrence of at least two-thirds of all
legislative involvement is imperative. The
the Senate's members; and (b) compel the executive
president cannot unilaterally withdraw from a
branch to notify the United Nations Secretary-
treaty if there is subsequent legislation which
General that it is cancelling, revoking, and
affirms and implements it.
withdrawing the Instrument of Withdrawal.3
Petitioners maintain that the Instrument of
Withdrawal is inconsistent with the Constitution.
 On August 30, 2011, the Philippines deposited the
instrument of ratification of the Rome Statute. On
The Rome Statute is a multilateral treaty that November 1, 2011, the Rome Statute entered into
established the International Criminal Court, where force in the Philippines. The country was the 16th
the gravest crimes under international law are state party to belong to the Group of Asia-Pacific
prosecuted.4 State Parties in the International Criminal Court.12

Since 1996, under Fidel V. Ramos's (President On June 30, 2016, President Aquino's term ended
Ramos) presidency, the Philippines has participated and President Rodrigo Roa Duterte (President
in the court's establishment, taking an active role in Duterte) took his oath as chief executive.
the deliberations as a member of the Drafting
Committee.5

On April 24, 2017, Atty. Jude Sabio filed a

complaint before the International Criminal Court
On December 28, 2000, the Philippines, through pertaining to alleged summary killings when
then President Joseph Ejercito Estrada (President President Duterte was the mayor of Davao City.13
Estrada), signed the Rome Statute of the
International Criminal Court.6

On June 6, 2017, Senator Antonio Trillanes IV and

Representative Gary Alejano filed a "supplemental
President Estrada's act of signing the Rome Statute communication" before the International Criminal
signified the Philippines' intent to be bound by the Court with regard to President Duterte's drug
provisions of the treaty, subject to the domestic war.14
requirements for its validity and enforceability.7
Particularly, Article VII, Section 21 of the 1987
Constitution8 requires the concurrence by at least
two-thirds of all members of the Senate for a treaty On February 8, 2018, the Office of International
to be valid, binding, effective, and enforceable. Criminal Court Trial Prosecutor Fatou Bensouda
(Prosecutor Bensouda) commenced the preliminary
examination of the atrocities allegedly committed
in the Philippines pursuant to the Duterte
In the meantime, on July 1, 2002, the International administration's "war on drugs."15
Criminal Court's Rome Statute entered into force.9

On March 15, 2018, the Philippines announced that

On December 11, 2009, with Senate concurrence to it was withdrawing from the International Criminal
the Rome Statute still pending, then President Court. President Duterte claimed that the country
Gloria Macapagal-Arroyo (President Macapagal- never became a state party to the Rome Statute
Arroyo) signed into law Republic Act No. 9851, since the treaty was not published in the Official
otherwise known as the Philippine Act on Crimes Gazette.16
Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity.
Republic Act No. 9851 replicated many of the
Rome Statute's provisions.10 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
Senate concurrence to the Rome Statute was the Republic of the Philippines to the United
obtained following President Benigno Aquino III's Nations in New York, deposited the Note Verbale
(President Aquino) election. On August 23, 2011, to Maria Luiza Ribeiro Viotti, Chef de Cabinet of
the Senate, with a vote of 17-1, passed Resolution the United Nations' Secretary-General Antonio
No. 546—enabling the Philippines' consummate Guterres.17
accession to the Rome Statute.11

The full text of this notification reads:

 On May 16, 2018, Senators Francis Pangilinan
(Senator Pangilinan), Franklin Drilon, Paolo
The Permanent Mission of the Republic of the Benigno Aquino, Leila De Lima, Risa Hontiveros,
Philippines to the United Nations presents its and Antonio Trillanes IV filed a Petition for
compliments to the Secretary-General of the United Certiorari and Mandamus,20 assailing the
Nations and has the honor to inform the Secretary- executive's unilateral act of withdrawing from the
General of the decision of the Government of the Rome Statute for being unconstitutional. This
Republic of the Philippines to withdraw from the Petition was docketed as G.R. No. 238875.
Rome Statute of the International Criminal Court in
accordance with the relevant provisions of the
Statute.
Later, Senator Pangilinan would manifest in the
oral arguments incidents relating to Senate
Resolution No. 289, a "Resolution Expressing the
The Philippines assures the community of nations Sense of the Senate that Termination of, or
that the Philippine Government continues to be Withdrawal from, Treaties and International
guided by the rule of law embodied in its Agreements Concurred in by the Senate shall be
Constitution, which also enshrines the country's Valid and Effective Only Upon Concurrence by the
long-standing tradition of upholding human rights. Senate." The Resolution was noted to have not
been calendared for agenda in the Senate.21

The Government affirms its commitment to fight

against impunity for atrocity crimes, Meanwhile, on June 13, 2018, the Philippine
notwithstanding its withdrawal from the Rome Coalition for the Establishment of the International
Statute, especially since the Philippines has a Criminal Court, and its members, Loretta Ann P.
national legislation punishing atrocity crimes. The Rosales, Dr. Aurora Corazon A. Parong, Evelyn
Government remains resolute in effecting its Balais-Serrano, among others, also filed a Petition
principal responsibility to ensure the long-term for Certiorari and Mandamus, docketed as G.R. No.
safety of the nation in order to promote inclusive 239483.22
national development and secure a decent and
dignified life for all.

On July 6, 2018, the Office of the Solicitor General

filed its Consolidated Comment to the Petitions.23
The decision to withdraw is the Philippines'
principled stand against those who politicize and
weaponize human rights, even as its independent
and well-functioning organs and agencies continue On August 14, 2018, the Integrated Bar of the
to exercise jurisdiction over complaints, issues, Philippines filed its own Petition,24 and an
problems and concerns arising from its efforts to Omnibus Ex-Parte Motion for Consolidation and
protect its people. for Inclusion in the Oral Arguments.25 This
Petition was docketed as G.R. No. 240954.

The Permanent Mission of the Republic of the

Philippines to the United Nations avails itself of Oral arguments were conducted on August 28,
this opportunity to renew to the Secretary-General 2018, September 4, 2018, and October 9, 2018. At
of the United Nations the assurances of its highest the termination of oral arguments, this Court
consideration.18 required the parties to file their respective
memoranda within 30 days.26

On March 17, 2018, the Secretary-General of the

United Nations received the notification from the In his March 18, 2019 press release, the Assembly
Philippine government.19 of State Parties' President Mr. O-Gon Kwon
"reiterated his regret regarding the withdrawal of
the Philippines, effective as of 17 March 2019,
from the Rome Statute[.]"27 He expressed hope
that the country rejoins the treaty in the future.28
 complained of were not in the exercise of judicial
or quasi-judicial powers.41 Moreover, mandamus
The three consolidated Petitions before this Court cannot lie against a discretionary act of a president,
seek similar reliefs. much less an act which is not enjoined as a duty,
such as the ratification of a treaty.42

In G.R. No. 238875, petitioners-senators argue that,

as a treaty that the Philippines validly entered into, They posit that the Petitions do not present a
the Rome Statute "has the same status as an justiciable controversy because the withdrawal
enactment of Congress,"29 as "a law in the from a treaty is a political question, being a policy
Philippines."30 They claim that the President determination delegated to the "wisdom of the
"cannot repeal a law."31 They aver that the executive."43 Specifically, the President is the
country's withdrawal from a treaty requires the "sole organ of the nation in its external relations,
concurrence of at least two-thirds of the Senate.32 and its sole representative with foreign nations."44
Respondents assert that the Constitution does not
expressly require Senate concurrence in
In G.R. No. 239483, petitioner Philippine Coalition withdrawing from a treaty.45
for the International Criminal Court and its
members assert that their rights to life, personal
security, and dignity were impaired by the Respondents maintain that the withdrawal was
withdrawal from the Rome Statute.33 Citing a valid for having complied with the Rome Statute,
decision of the South African High Court, they also which requires only a written notification of
claim that the ratification of and withdrawal from a withdrawal.46
multilateral treaty require the Senate's
concurrence.34 According to them, contrary to the
President's assertion, the Rome Statute is effective
in Philippine jurisdiction by virtue of the Respondents also allege that the decision to
Constitution's incorporation clause, despite lack of withdraw from the Rome Statute "was an act to
publication.35 protect national sovereignty from interference and
to preserve the judiciary's independence,"47 which
was necessary given Prosecutor Bensouda's
preliminary examination. This allegedly violates
Petitioners pray that the notification of withdrawal the complementarity principle under the Rome
be declared "invalid or ineffective"36 or "void ab Statute.48
initio"37 and that the executive, through the
Department of Foreign Affairs and the Philippine
Permanent Mission to the United Nations, be
required to notify the Secretary-General of the Lastly, respondents aver that the rights being
United Nations that the notice is cancelled, protected under the Rome Statute are adequately
revoked, or withdrawn.38 safeguarded by domestic laws.49 The withdrawal's
only effect, they say, is that the "Philippines will no
longer be under the jurisdiction of the International
Criminal Court."50
Respondents, through the Office of the Solicitor
General, counter that the petitioners in G.R. No.
238875 do not have locus standi as they do not
represent "the official stand of the Senate as a Respondents pray that the consolidated Petitions be
body."39 Neither do the petitioners in G.R. No. denied for lack of merit.51
239483 have standing to question "the wisdom of
the President's sovereign power to withdraw from
the Rome Statute, absent any proof of actual or For this Court's resolution are the following issues:
immediate danger of sustaining a direct injury as a
result of said withdrawal."40
First, whether or not petitioners have sufficiently
discharged their burden of showing that this case is
Respondents claim that a Rule 65 petition is justiciable. Subsumed under this issue are the
improper because the acts of the President following:
 c. Whether or not the executive 's withdrawal from
the Rome Statute violated any legislative act or
1. Whether or not the consolidated Petitions present prerogative; and
an actual, justiciable controversy;

d. Whether or not withdrawing from a treaty

2. Whether or not each of the consolidated Petitions demands the concurrence of at least two-thirds of
were timely filed; all the members of the Senate.

3. Whether or not petitioners have the requisite Third, whether or not the Philippines' withdrawal
standing to file their respective Petitions; from the Rome Statute places the Philippines in
breach of its obligations under international law.

4. Whether or not the consolidated Petitions were

filed in violation of the principle of hierarchy of Lastly, whether or not the Philippines' withdrawal
courts; 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
5. Whether or not the issues raised by the question.
consolidated Petitions pertain to political questions;
and
I

6. Whether or not petitioners' resort to the

procedural vehicles of petitions for certiorari and Through Article VII, Section 21 of the
mandamus is proper. Constitution, the Rome Statute, an international
instrument, was transformed and made part of the
law of the land. Entry into the Rome Statute
Second, whether or not the Philippines' withdrawal represented the Philippines' commitment to the
from the Rome Statute through a Note Verbale international community to prosecute individuals
delivered to the Secretary-General of the United accused of international crimes. Its validity and
Nations is valid, binding, and effectual. This effectivity hinged on the passage of Senate
involves the following issues: Resolution No. 546, which embodied the Senate's
concurrence to the Philippines' accession to the
Rome Statute.
1. Whether or not the Philippines complied with all
the requisites for withdrawal from the Rome
Statute; Petitioners believe that President Duterte's
unilateral withdrawal from the Rome Statute
transgressed legislative prerogatives.
2. Whether or not the executive can unilaterally
withdraw from a treaty. This encompasses:
Ultimately, this Court may only rule in an
appropriate, justiciable controversy raised by a
a. Whether or not the executive had valid grounds party who suffers from direct, substantial, and
to withdraw from the Rome Statute; material injury. Once again, we clarify our role
within the constitutional order. We take this
occasion to emphasize the need for this Court to
exercise restraint in cases that fail to properly
b. Whether or not withdrawing from a treaty
present justiciable controversies, brought by parties
requires legislative action;
who fail to demonstrate their standing. This is
especially true when our pronouncements will
cause confusion in the diplomatic sphere and implications in so doing. This Court must exercise
undermine our international standing and repute. restraint in the face of political posturing, and must
anchor its determinations not on political results,
but on principles and the text found in the
Petitioners are before us through the vehicles of Constitution and law. The most basic of these
petitions for certiorari and mandamus under Rule principles are parameters that determine the
65 of the Rules of Court, praying that the justiciability of cases. Judicial office impels
Philippine Notice of Withdrawal be declared void capacity to rule in keeping with what the
ab initio, and that the withdrawal itself be declared Constitution or law mandates, even when
invalid. They also pray for a writ of mandamus to potentially contrary to what a magistrate may
direct the Executive Secretary to recall and revoke prefer politically.
the Notice of Withdrawal, and to submit the issue
before the Senate for its deliberation.52
II

These Petitions fail on significant procedural

grounds. To understand the implications of these cases, a
brief overview of the Rome Statute is necessary.

It is true that this Court, in the exercise of its

judicial power, can craft a framework to interpret On July 17, 1998, the Rome Statute of the
Article VII, Section 21 of the Constitution and International Criminal Court was adopted in a
determine the extent to which Senate concurrence conference participated in by 120 states.55 It
in treaty withdrawal is imperative. However, it will created the International Criminal Court, a
be excessive for any such framework to be imposed permanent autonomous institution,56 that was
on the circumstances surrounding these present given jurisdiction to "investigate, prosecute, and
Petitions, seeing as how the incidents here are fait try" individuals accused of international crimes of
accompli. genocide, crimes against humanity, war crimes, and
the crime of aggression.57

Petitioners insist that the protection of human rights

will be weakened, yet their contentions are mere On the heels of World War I, during the 1919 Paris
surmises. Ample protection for human rights within Peace Conference, an international tribunal that
the domestic sphere remain formally in place. It is will prosecute leaders accused of international
a canon of adjudication that "the court should not crimes was first proposed in modern times. In
form a rule of constitutional law broader than is 1937, the League of Nations held a conference in
required by the precise facts to which it is Geneva, where 13 states signed the first convention
applied."53 aiming to establish a permanent international court.
However, none of the states ratified it and its aims
failed to materialize.58
Contrary to petitioners' claim, these cases do not
deal with the results of the ongoing preliminary
examination by Prosecutor Bensouda. Article 127 Following World War II and the Axis Powers'
of the Rome Statute covers that.54 Neither at issue aggressive military campaigns59 in Europe and
here is whether a future president may decide to re- Asia,60 the allied powers established ad hoc
enter the Rome Statute and secure the requisite tribunals to try Axis leaders accused of
Senate concurrence. It is possible that whatever the international crimes.61
results in these cases are, a future administration
under a new president can make that decision.
Consequently, a draft of the charter of an
international tribunal was prepared in a meeting in
Petitioners want a different political result from London among representatives from France, the
what the President has done, and so they implore United Kingdom, the United States, and the Union
this Court to veto his action, raising serious policy of Soviet Socialist Republics. On August 8, 1945,
the London Agreement was signed. It established In April 1998, the amended draft treaty was
the Nuremburg International Military Tribunal.62 presented to the United Nations General Assembly,
The tribunal sat in Nuremberg, Germany and tried and the Rome Conference commenced in June
the most notorious Nazi war criminals.63 Its 1998.73
jurisdiction was limited to crimes against peace,
war crimes, and crimes against humanity.64
Nineteen other states subsequently supported the On July 17, 1998, 120 states voted in favor of the
London Agreement.65 draft treaty, resulting in its adoption.74

In January 1946, the Supreme Commander of the On July 1, 2002, the Rome Statute of the
Allied Powers, General Douglas MacArthur, International Criminal Court entered into force
established the International Military Tribunal for upon ratification by 60 states.75 This formally
the Far East, more commonly known as the Tokyo constituted the International Criminal Court.
International Military Tribunal.66 The Tokyo Trial
was conducted from May 3, 1946 to November 12,
1948.67
The International Criminal Court has an
international legal personality,76 and sits at The
Hague in the Netherlands.77 It may exercise its
Upon termination of their respective trials, the functions and powers "on the territory of any [s]tate
Nuremburg and Tokyo International Military [p]arty and, by special agreement, on the territory
Tribunals also ceased to operate.68 of any other [s]tate."78

The United Nations General Assembly later put to State parties to the Rome Statute recognize the
task the International Law Commission, a jurisdiction of the International Criminal Court
committee of legal experts who worked for the over the following:
development and codification of international law.
The commission was asked to look into the
possibility of establishing a permanent international
ARTICLE 5
criminal court. Drafts were subsequently produced,
but the Cold War impeded its progress.69 Crimes within the jurisdiction of the Court

As work continued on the draft, the United Nations 1. The jurisdiction of the Court shall be limited to
Security Council established two more ad hoc the most serious crimes of concern to the
tribunals in the early 1990s. To address large-scale international community as a whole. The Court has
atrocities involving the Yugoslavian wars of jurisdiction in accordance with this Statute with
dissolution and the Rwandan genocide of 1994,70 respect to the following crimes:
the International Criminal Tribunal for the former
Yugoslavia and the International Criminal Tribunal
for Rwanda were established. These temporary
(a) The crime of genocide;
tribunals underscored the need for a permanent
international court.

(b) Crimes against humanity;

In 1994, the International Law Commission
submitted a proposal to the United Nations General
Assembly, creating a permanent international (c) War crimes;
criminal court.71 The year after, a Preparatory
Committee was convened.72
(d) The crime of aggression.
The International Criminal Court's jurisdiction is
"complementary to national criminal
jurisdictions."79 Complementarity means that the (b) Orders, solicits or induces the commission of
International Criminal Court may only exercise such a crime which in fact occurs or is attempted;
jurisdiction if domestic courts were "unwilling or
unable" to prosecute.80 Article 17 of the Rome
Statute contemplates these situations: (c) For the purpose of facilitating the commission
of such a crime, aids, abets or otherwise assists in
its commission or its attempted commission,
2. In order to determine unwillingness in a including providing the means for its commission;
particular case, the Court shall consider, having
regard to the principles of due process recognized
by international law, whether one or more of the (d) In any other way contributes to the commission
following exist, as applicable: or attempted commission of such a crime by a
group of persons acting with a common purpose.
Such contribution shall be intentional and shall
(a) The proceedings were or are being undertaken either:
or the national decision was made for the purpose
of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of i. Be made with the aim of furthering the criminal
the Court referred to in article 5; activity or criminal purpose of the group, where
such activity or purpose involves the commission
of a crime within the jurisdiction of the Court; or
(b) There has been an unjustified delay in the
proceedings which in the circumstances is
inconsistent with an intent to bring the person ii. Be made in the knowledge of the intention of the
concerned to justice; group to commit the crime;

(c) The proceedings were not or are not being (e) In respect of the crime of genocide, directly and
conducted independently or impartially, and they publicly incites others to commit genocide;
were or are being conducted in a manner which, in
the circumstances, is inconsistent with an intent to
bring the person concerned to justice. (f) Attempts to commit such a crime by taking
action that commences its execution by means of a
substantial step, but the crime does not occur
3. In order to determine inability in a particular because of circumstances independent of the
case, the Court shall consider whether, due to a person's intentions. However, a person who
total or substantial collapse or unavailability of its abandons the effort to commit the crime or
national judicial system, the State is unable to otherwise prevents the completion of the crime
obtain the accused or the necessary evidence and shall not be liable for punishment under this Statute
testimony or otherwise unable to carry out its for the attempt to commit that crime if that person
proceedings. (Emphasis supplied) completely and voluntarily gave up the criminal
purpose.81

The International Criminal Court has jurisdiction

over natural persons. Criminal liability shall attach Individual criminal responsibility under the Rome
to one who: Statute does not affect state responsibility in
international law.82 Further, the Rome Statute
provides additional grounds of criminal
(a) Commits such a crime, whether as an responsibility for commanders and other
individual, jointly with another or through another superiors.83
person, regardless of whether that other person is
criminally responsible;
In determining liability under the Rome Statute, a
person's official capacity is irrelevant:
The Assembly of States Parties is the International
Criminal Court's management oversight and
legislative body, comprised of representatives of all
1. This Statute shall apply equally to all persons the states that ratified and acceded to the Rome
without any distinction based on official capacity. Statute.91
In particular, official capacity as a Head of State or
Government, a member of a Government or
parliament, an elected representative or a
government official shall in no case exempt a Upon a finding of conviction, the International
person from criminal responsibility under this Criminal Court may impose any of the following
Statute, nor shall it, in and of itself, constitute a penalties:
ground for reduction of sentence.

(a) Imprisonment for a specified number of years,

2. Immunities or special procedural rules which which may not exceed a maximum of 30 years; or
may attach to the official capacity of a person,
whether under national or international law, shall
not bar the Court from exercising its jurisdiction (b) A term of life imprisonment when justified by
over such a person.84 the extreme gravity of the crime and the individual
circumstances of the convicted person.

The Rome Statute provides that state parties are

obliged to give their full cooperation toward the 2. In addition to imprisonment, the Court may
International Criminal Court's investigation and order:
prosecution of crimes within its jurisdiction.85 The
International Criminal Court may request, "through
the diplomatic channel or any other appropriate (a) A fine under the criteria provided for in the
channel as may be designated by each State Party Rules of Procedure and Evidence;
upon ratification, acceptance, approval or
accession," state parties to cooperate.86 It may
employ measures to "ensure the safety or physical
(b) A forfeiture of proceeds, property and assets
or psychological well-being of any victims,
derived directly or indirectly from that crime,
potential witnesses and their families."87
without prejudice to the rights of bona fide third
parties. 92

The International Criminal Court may also ask for

cooperation and assistance from any
All disputes involving the International Criminal
intergovernmental organization pursuant to an
Court's judicial functions are settled by its
agreement with the organization and in accordance
decision.93 Disputes of at least two state parties
with its competence and mandate.88 State parties
which relate to the application of the Rome Statute,
are required to ensure that their national law
and which are unsettled by "negotiations within
provides a procedure "for all of the forms of
three months of their commencement, shall be
cooperation" specified in Part 9 of the treaty.89
referred to the Assembly of States Parties." The
Assembly may "settle the dispute or may make
recommendations on further means of settlement of
A state party's failure to comply with the the dispute."94
International Criminal Court's request to cooperate
would warrant the International Criminal Court's
finding to that effect. It will then "refer the matter
Article 127 of the Rome Statute provides
to the Assembly of States Parties or, where the
mechanisms on how a state party may withdraw
Security Council referred the matter to the
from it:
International Criminal Court, to the Security
Council."90
1. A State Party may, by written notification Office of the Executive Secretary/(Office of the
addressed to the Secretary-General of the United Chief Presidential Legal Counsel) Member
Nations, withdraw from this Statute. The
withdrawal shall take effect one year after the date Department of Interior and Local Government
of receipt of the notification, unless the notification Member
specifies a later date. University of the Philippines

College of Law Member97

2. A State shall not be discharged, by reason of its The task force had the following duties:
withdrawal, from the obligations arising from this
Statute while it was a Party to the Statute, including
any financial obligations which may have accrued.
1. Undertake studies and researches pertaining to
Its withdrawal shall not affect any cooperation with
the proposed establishment of the International
the Court in connection with criminal
Criminal Court;
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 2. Formulate policy recommendations to serve as
prejudice in any way the continued consideration of inputs in the review and consolidation of the
any matter which was already under consideration Philippine Government's position in the
by the Court prior to the date on which the Preparatory Committee meetings of the ICC and
withdrawal became effective. the United Nations General Assembly;

Burundi is, thus far, the only other state party to 3. Identify and recommend legislative measures
withdraw from the Rome Statute. In accordance necessary in the furtherance of the foregoing;
with Article 127(1) of the Rome Statute, it sent a
written notification of withdrawal to the Secretary-
General of the International Criminal Court on 4. Serve as a forum for the resolution of issues and
October 27, 2016. Burundi's withdrawal was concerns pertaining to the establishment of the
effected on October 26, 2017.95 ICC;

Following Burundi, South Africa, Gambia, and the 5. Pursue other related functions which may be
Philippines manifested their intent to withdraw. deemed necessary by the President.98
Nonetheless, Gambia and South Africa rescinded
their notifications of withdrawal on February 10,
2017 and March 7, 2017, respectively.96
From June 15, 1998 to July 17, 1998, the
Philippines participated in the United Nations
Diplomatic Conference of Plenipotentiaries on the
III Establishment of an International Criminal Court in
Rome. Then Foreign Affairs Undersecretary Lauro
L. Baja, the Philippine Head of Delegation,99
On March 24, 1998, President Ramos issued delivered a speech that explained the country's
Administrative Order No. 387, which created a task position, commitment, and historical participation
force on the proposed establishment of the on the establishment of the International Criminal
International Criminal Court. The task force was Court. His points are summarized, as follows:
composed of the following:

7. Mr. Baja (Philippines) said that his country

Department of Foreign Affairs Chairman aspired to the establishment of an international
criminal court that would dispense justice
Department of Justice Co-Chairman efficiently and effectively; an institution that was
ineffective in addressing the problem of impunity
Office of the Solicitor General Member
of the perpetrators of the most heinous violations of the necessary changes to its national laws required
the laws of humanity would not serve justice or by the establishment of the Court.100 (Emphasis
help to maintain international peace and security. supplied)
The position of the Philippines, consistent with its
constitutional and legal traditions, was based on
those considerations and on its desire to uphold the In the same conference, the Philippines, through its
current evolution of international law. Alternate Head of Delegation, Hon. Franklin M.
Ebdalin,101 voted to adopt the Rome Statute, and
explained its vote:
8. National judicial systems should have primacy in
trying crimes and punishing the guilty. The
International Criminal Court should complement [T]he Statute contained the vital elements of an
those systems and seek action only when national international criminal court, with jurisdiction over
institutions did not exist, could not function or were genocide, crimes against humanity and war crimes,
otherwise unavailable. The Court should have gender-based and sex-related crimes and acts
jurisdiction over the core crimes of genocide, war committed in non-international armed conflicts.
crimes, crimes against humanity and aggression, The Prosecutor could initiate proceedings proprio
but its Statute should contain an additional motu, independently of the Security Council.
provision allowing for the future inclusion of other
crimes that affect the very fabric of the
international system.
22. The restrictions on admissibility had been
reduced to an acceptable minimum. The principle
of complementarity was assured, giving due regard
9. The Prosecutor should be independent and be to the national jurisdiction and sovereignty of
entitled to investigate complaints proprio motu, States parties. Finally, there were provisions for
subject to the safeguards provided by a supervisory restitution, compensation and rehabilitation for
pre-trial chamber. The use of weapons of mass victims.
destruction, including nuclear weapons, must be
considered a war crime. The definition of war
crimes and crimes against humanity should include
23. On the other hand, some provisions detracted
special consideration of the interests of minors and
from those strengths. Some new definitions of war
of gender sensitivity. The Statute should provide
crimes constituted a retrograde step in the
for an age below which there was exemption from
development of international law. The applicability
criminal responsibility, and persons under 18 years
of the aggression provisions had been postponed
of age should not be recruited into the armed
pending specific definition of the crime, and States
forces. The sexual abuse of women committed as
parties had the option of reservations on the
an act of war or in a way that constituted a crime
applicability of war crimes provisions. Finally, the
against humanity should be deemed particularly
Security Council could seek deferral of prosecution
reprehensible. The crime of rape should be gender-
for a one-year period, renewable for an apparently
neutral and classified as a crime against persons. A
unlimited number of times.
schedule of penalties should be prescribed for each
core crime defined in the Statute, following the
principle that there was no crime if there was no
penalty, which would also meet the due process 24. Nevertheless, he was confident that the
requirement that the accused should be fully International Criminal Court could succeed with
apprised of the charges against them and of the the support of the international community and had
penalties attaching to the alleged crimes. therefore decided to vote in favour of the
Statute.102 (Emphasis supplied)

10. The Philippines supported the positions set out

by the States members of the Movement of Non- On December 28, 2000, the Philippines103 signed
Aligned Countries at the Ministerial Meeting of the the Rome Statute. However, it was still "subject to
Coordinating Bureau of the Movement of Non- ratification, acceptance or approval by signatory
Aligned Countries, held in Cartagena de Indias, [s]tates."104 It was also necessary that instruments
Colombia, in May 1998, and was prepared to make
of ratification be deposited with the Secretary- signature. This step is primarily intended as a
General of the United Nations.105 means of authenticating the instrument and for the
purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate the
Later, Senator Aquilino Pimentel, Jr., final consent of the state in cases where ratification
Representative Loretta Ann Rosales, the Philippine of the treaty is required. The document is ordinarily
Coalition for the Establishment of the International signed in accordance with the alternat, that is, each
Criminal Court, the Task Force Detainees of the of the several negotiators is allowed to sign first on
Philippines, and the Families of Victims of the copy which he will bring home to his own state.
Involuntary Disappearances, among others, filed a
petition for mandamus before this Court to compel
the Office of the Executive Secretary and the Ratification, which is the next step, is the formal
Department of Foreign Affairs to transmit the act by which a state confirms and accepts the
signed copy of the Rome Statute to the Senate for provisions of a treaty concluded by its
its concurrence.106 representatives. The purpose of ratification is to
enable the contracting states to examine the treaty
more closely and to give them an opportunity to
Their petition was dismissed. In Pimentel, Jr. v. refuse to be bound by it should they find it inimical
Executive Secretary,107 this Court noted that it to their interests. It is for this reason that most
was beyond its "jurisdiction to compel the treaties are made subject to the scrutiny and
executive branch of the government to transmit the consent of a department of the government other
signed text of the Rome Statute to the Senate."108 than that which negotiated them.
Pimentel Jr. quoted Justice Isagani A. Cruz, who
had earlier explained the following concerning the
treaty-making process: ....

The usual steps in the treaty-making process are: The last step in the treaty-making process is the
negotiation, signature, ratification, and exchange of exchange of the instruments of ratification, which
the instruments of ratification. The treaty may then usually also signifies the effectivity of the treaty
be submitted for registration and publication under unless a different date has been agreed upon by the
the U.N. Charter, although this step is not essential parties. Where ratification is dispensed with and no
to the validity of the agreement as between the effectivity clause is embodied in the treaty, the
parties. instrument is deemed effective upon its
signature.109 (Emphasis in the original)

Negotiation may be undertaken directly by the head

of state but he now usually assigns this task to his This Court declared that submission to ratification
authorized representatives. These representatives is "generally held to be an executive act,"110 and it
are provided with credentials known as full powers, binds the state to the signed statute. It concluded
which they exhibit to the other negotiators at the that upon signature through a representative, the
start of the formal discussions. It is standard president exercises discretion on whether to ratify
practice for one of the parties to submit a draft of the statute or not:
the proposed treaty which, together with the
counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be After the treaty is signed by the state's
brief or protracted, depending on the issues representative, the President, being accountable to
involved, and may even "collapse" in case the the people, is burdened with the responsibility and
parties are unable to come to an agreement on the the duty to carefully study the contents of the treaty
points under consideration. and ensure that they are not inimical to the interest
of the state and its people. Thus, the President has
the discretion even after the signing of the treaty by
If and when the negotiators finally decide on the the Philippine representative whether or not to
terms of the treaty, the same is opened for ratify the same. The Vienna Convention on the
Law of Treaties does not contemplate to defeat or On February 28, 2011, President Aquino sent the
even restrain this power of the head of states. If that signed Rome Statute to the Senate for
were so, the requirement of ratification of treaties concurrence.115 On August 23, 2011, the Senate
would be pointless and futile. It has been held that passed Resolution No. 546, which embodied the
a state has no legal or even moral duty to ratify a country's accession to the Rome Statute.116
treaty which has been signed by its
plenipotentiaries. There is no legal obligation to
ratify a treaty, but it goes without saying that the On August 30, 2011, the Philippines deposited its
refusal must be based on substantial grounds and instrument of ratification to the United Nations
not on superficial or whimsical reasons. Otherwise, Secretary-General. Thus, the Rome Statute took
the other state would be justified in taking offense. effect in the Philippines on November 1, 2011.117

It should be emphasized that under our IV

Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate.
The role of the Senate, however, is limited only to
The Vienna Convention on the Law of Treaties
giving or withholding its consent, or concurrence,
(Vienna Convention) defines treaties as
to the ratification. Hence, it is within the authority
"international agreement[s] concluded between
of the President to refuse to submit a treaty to the
states in written form and governed by international
Senate or, having secured its consent for its
law, whether embodied in a single instrument or in
ratification, refuse to ratify it. Although the refusal
two or more related instruments and whatever its
of a state to ratify a treaty which has been signed in
particular designation."118
its behalf is a serious step that should not be taken
lightly, such decision is within the competence of
the President alone, which cannot be encroached by
this Court via a writ of mandamus. This Court has In our jurisdiction, we characterize treaties as
no jurisdiction over actions seeking to enjoin the "international agreements entered into by the
President in the performance of his official Philippines which require legislative concurrence
duties.111 (Citations omitted) after executive ratification. This term may include
compacts like conventions, declarations, covenants
and acts."119
In 2009, President Macapagal-Arroyo signed into
law Republic Act No. 9851, which replicated many
of the then unratified Rome Statute's provisions. Treaties under the Vienna Convention include all
written international agreements, regardless of their
nomenclature. In international law, no difference
exists in the agreements' binding effect on states,
Some provisions, however, are significantly
notwithstanding how nations opt to designate the
different. In some aspects, the law went beyond the
document.
Rome Statute. It broadened the definition of
torture, added the conscription of child soldiers as a
war crime,112 and stipulated jurisdiction over
crimes against humanity anywhere in the world, as However, Philippine law distinguishes treaties
long as the offender or victim is Filipino.113 This from executive agreements.
removes complementarity as a requirement for
prosecution of crimes against humanity under the
ratified treaty. While the treaty's language had to be V
refined to take the interests of other countries into
consideration,114 the law was independently
passed considering all our interests. This
Treaties and executive agreements are equally
independent, voluntary initiative strengthened our
binding on the Philippines. However, an executive
own criminal justice system.
agreement: "(a) does not require legislative
concurrence; (b) is usually less formal; and (c)
deals with a narrower range of subject matters."120
Executive agreements dispense with Senate Senate concurrence may be conveniently
concurrence "because of the legal mandate with disregarded:
which they are concluded."121 They simply
implement existing policies, and are thus entered
into: However, this principle does not mean that the
domestic law distinguishing treaties, international
agreements, and executive agreements is relegated
(1) to adjust the details of a treaty; to a mere variation in form, or that the
constitutional requirement of Senate concurrence is
demoted to an optional constitutional directive.
(2) pursuant to or upon confirmation by an act of There remain two very important features that
the Legislature; or distinguish treaties from executive agreements and
translate them into terms of art in the domestic
setting.
(3) in the exercise of the President's independent
powers under the Constitution.
First, executive agreements must remain traceable
to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of
The raison d'être of executive agreements hinges on
these precedents puts the validity and effectivity of
prior constitutional or legislative authorizations.122
executive agreements under serious question for
(Emphasis supplied, citations omitted)
the main function of the Executive is to enforce the
Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the
However, this Court had previously stated that this performance of these rules. In turn, executive
difference in form is immaterial in international agreements cannot create new international
law: obligations that are not expressly allowed or
reasonably implied in the law they purport to
implement.
The special nature of an executive agreement is not
just a domestic variation in international
agreements. International practice has accepted the Second, treaties are, by their very nature,
use of various forms and designations of considered superior to executive agreements.
international agreements, ranging from the Treaties are products of the acts of the Executive
traditional notion of a treaty — which connotes a and the Senate unlike executive agreements, which
formal, solemn instrument — to engagements are solely executive actions. Because of legislative
concluded in modem, simplified forms that no participation through the Senate, a treaty is
longer necessitate ratification. An international regarded as being on the same level as a statute. If
agreement may take different forms: treaty, act, there is an irreconcilable conflict, a later law or
protocol, agreement, concordat, compromis treaty takes precedence over one that is prior. An
d'arbitrage, convention, covenant, declaration, executive agreement is treated differently.
exchange of notes, statute, pact, charter, agreed Executive agreements that are inconsistent with
minute, memorandum of agreement, modus either a law or a treaty are considered ineffective.
vivendi, or some other form. Consequently, under Both types of international agreement are
international law, the distinction between a treaty nevertheless subject to the supremacy of the
and an international agreement or even an Constitution.
executive agreement is irrelevant for purposes of
determining international rights and
obligations.123 (Citations omitted, emphasis in the
This rule does not imply, though, that the President
original)
is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this
This Court also cautioned that this local affectation power must still be exercised within the context
does not mean that the constitutionally required and the parameters set by the Constitution, as well
as by existing domestic and international Declaration of Principles and State Policies
laws[.]124 (Emphasis supplied, citations omitted) Principles

International agreements125 fall under these two ....

general categories, and are outlined in Executive
Order No. 459, which provides guidelines on how
these agreements enter into force in the domestic SECTION 2. The Philippines renounces war as an
sphere.126 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
VI peace, equality, justice, freedom, cooperation, and
amity with all nations.

Though both are sources of international law,

treaties must be distinguished from generally ARTICLE VII
accepted principles of international law.
Executive Department

Article 38 of the Statute of the International Court

of Justice enumerates the sources of international ....
law:127

SECTION 21. No treaty or international agreement

a. international conventions, whether general or shall be valid and effective unless concurred in by
particular, establishing rules expressly recognized at least two-thirds of all the Members of the Senate.
by the contesting states; (Emphasis supplied)

b. international custom, as evidence of a general The sources of international law—international

practice accepted as law; conventions, international custom, general
principles of law, and judicial decisions—are
treated differently in our jurisdiction.

c. the general principles of law recognized by

civilized nations;
Article II, Section 2 of the Constitution declares
that international custom and general principles of
law are adopted as part of the law of the land. No
d. subject to the provisions of Article 59, judicial further act is necessary to facilitate this:
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law. "Generally accepted principles of international
law" refers to norms of general or customary
international law which are binding on all states,
i.e., renunciation of war as an instrument of
Two constitutional provisions incorporate or national policy, the principle of sovereign
transform portions of international law into the immunity, a person's right to life, liberty and due
domestic sphere, namely: (1) Article II, Section 2, process, and pacta sunt servanda, among others.
which embodies the incorporation method; and (2) The concept of "generally accepted principles of
Article VII, Section 21, which covers the law" has also been depicted in this wise:
transformation method. They state:

ARTICLE II
Some legal scholars and judges look upon certain
"general principles of law" as a primary source of
international law because they have the "character In order to qualify as a product of the subsidiary
of jus rationale" and are "valid through all kinds of law-creating process, a principle of law must fulfill
human societies." O'Connell holds that certain three requirements: (1) it must be a general
principles are part of international law because they principle of law as distinct from a legal rule of
are "basic to legal systems generally" and hence more limited functional scope, (2) it must be
part of the jus gentium. These principles, he recognized by civilized nations, and (3) it must be
believes, are established by a process of reasoning shared by a fair number of states in the community
based on the common identity of all legal systems. of nations.
If there should be doubt or disagreement, one must
look to state practice and determine whether the
municipal law principle provides a just and ....
acceptable solution.128 (Citations omitted,
emphasis supplied)
Clarifying the term "generally-accepted principles
of international law" during the deliberations of the
In his separate opinion in Government of the 1987 Constitutional Commission, Commissioner
United States of America v. Purganan,129 Justice Adolfo S. Azcuna points out that "when we talk of
Jose C. Vitug (Justice Vitug) underscored that as a generally-accepted principles of international law
source of international law, general principles of as part of the law of the land, we mean that it is
law are only secondary to international conventions part of the statutory part of laws, not of the
and international customs. He stressed that while Constitution.["]
international conventions and customs are "based
on the consent of nations,"130 general principles of
law have yet to have a binding definition:131 The remark is shared by Professor Merlin M.
Magallona who expresses that the phrase "as part
of the law of the land" in the incorporation clause
Article 38 (1) (c) is identified as being a "secondary refers to the levels of legal rules below the
source" of international law and, therefore, not Constitution such as legislative acts and judicial
ranked at par with treaties and customary decisions. Thus, he contends, it is incorrect to so
international law. The phrase is innately vague; and interpret this phrase as including the Constitution
its exact meaning still eludes any general itself because it would mean that the "generally-
consensus. The widely preferred opinion, however, accepted principles of international law" falls in
appears to be that of Oppenheim which views parity with the Constitution.132 (Emphasis
"general principles of law" as being inclusive of supplied, citations omitted)
principles of private or municipal law when these
are applicable to international relations. Where, in
certain cases, there is no applicable treaty nor a In Rubrico v. Arroyo,133 Justice Conchita Carpio
generality of state practice giving rise to customary Morales (Justice Carpio Morales) refined Justice
law, the international court is expected to rely upon Vitug's proposed framework.ℒαwρhi ৷ She
certain legal notions of justice and equity in order conceded that the Constitution's mention of
to deduce a new rule for application to a novel generally accepted principles of international law
situation. This reliance or "borrowing" by the was "not quite the same" as, and was not
international tribunal from general principles of specifically included in Article 38's "general
municipal jurisprudence is explained in many ways principles of law recognized by civilized
by the fact that municipal or private law has a nations[.]"134 Yet, she noted:
higher level of development compared to
international law. Brownlie submits that the term
"generally-accepted principles of international law"
Renowned publicist Ian Brownlie suggested,
could also refer to rules of customary law, to
however, that "general principles of international
general principles of law, or to logical propositions
law" may refer to rules of customary law, to
resulting from judicial reasoning on the basis of
general principles of law as in Article 38 (1) (c), or
existing international law and municipal law
to logical propositions resulting from judicial
analogies.
reasoning on the basis of existing international law Justice Antonio T. Carpio, in his dissent in Bayan
and municipal analogies. Muna v. Romulo,136 echoed Justice Carpio
Morales's supposition and further discussed:

Indeed, judicial reasoning has been the bedrock of

Philippine jurisprudence on the determination of [T]he doctrine of incorporation which mandates
generally accepted principles of international law that the Philippines is bound by generally accepted
and consequent application of the incorporation principles of international law which automatically
clause. form part of Philippine law by operation of the
Constitution.

In Kuroda v. Jalandoni, the Court held that while

the Philippines was not a signatory to the Hague In Kuroda v. Jalandoni, this Court held that this
Convention and became a signatory to the Geneva constitutional provision "is not confined to the
Convention only in 1947, a Philippine Military recognition of rules and principles of international
Commission had jurisdiction over war crimes law as contained in treaties to which our
committed in violation of the two conventions government may have been or shall be a signatory."
before 1947. The Court reasoned that the rules and The pertinent portion of Kuroda states:
regulations of the Hague and Geneva Conventions
formed part of generally accepted principles of
international law. Kuroda thus recognized that It cannot be denied that the rules and regulations of
principles of customary international law do not The Hague and Geneva Conventions form part of
cease to be so, and are in fact reinforced, when and are wholly based on the generally accepted
codified in multilateral treaties. principles of international law. . . . Such rule and
principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory to
In International School Alliance of Educators v. the conventions embodying them, for our
Quisumbing, the Court invalidated as Constitution has been deliberately general and
discriminatory the practice of International School, extensive in its scope and is not confined to the
Inc. of according foreign hires higher salaries than recognition of rules and principles of international
local hires. The Court found that, among other law as contained in treaties to which our
things, there was a general principle against government may have been or shall be a signatory.
discrimination evidenced by a number of
international conventions proscribing it, which had
been incorporated as part of national laws through Hence, generally accepted principles of
the Constitution. international law form part of Philippine laws even
if they do not derive from treaty obligations of the
Philippines.
The Court thus subsumes within the rubric of
"generally accepted principles of international law"
both "international custom" and "general principles Generally accepted principles of international law,
of law," two distinct sources of international law as referred to in the Constitution, include
recognized by the ICJ Statute. 135 (Citations customary international law. Customary
omitted, emphasis supplied) international law is one of the primary sources of
international law under Article 38 of the Statute of
the International Court of Justice. Customary
In other words, Justice Carpio Morales opined that, international law consists of acts which, by
per jurisprudence, international customs and repetition of States of similar international acts for
general principles of law recognized by civilized a number of years, occur out of a sense of
nations form part of the law of the land. obligation, and taken by a significant number of
States. It is based on custom, which is a clear and
continuous habit of doing certain actions, which
has grown under the aegis of the conviction that
these actions are, according to international law,
obligatory or right. Thus, customary international As discussed in Bayan v. Zamora,140 concurring m
law requires the concurrence of two elements: "1 a treaty or international agreement is:
the established, wide-spread, and consistent
practice on the part of the States; and 2 a
psychological element known as opinion juris sive . . . essentially legislative in character; the Senate,
necessitatis (opinion as to law or necessity). as an independent body possessed of its own
Implicit in the latter element is a belief that the erudite mind, has the prerogative to either accept or
practice in question is rendered obligatory by the reject the proposed agreement, and whatever action
existence of a rule of law requiring it."137 it takes in the exercise of its wide latitude of
(Emphasis supplied, citations omitted) discretion, pertains to the wisdom rather than the
legality of the act.141

Thus, generally accepted principles of international

law include international customs and general Thus, in doing so:
principles of law. Under the incorporation clause,
these principles form part of the law of the land.
And, "by mere constitutional declaration,
. . . the Senate partakes a principal, yet delicate,
international law is deemed to have the force of
role in keeping the principles of separation of
domestic law."138
powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments
remain true to their form in a democratic
Pursuant to Article VII, Section 21 of the government such as ours.142
Constitution, treaties become "valid and effective"
upon the Senate's concurrence:
However, the provision on treaty-making is under
Article VII of the Constitution, which concerns the
The Senate's ratification of a treaty makes it legally executive department. A review of the evolution of
effective and binding by transformation. It then has this constitutional provision may aid this Court in
the force and effect of a statute enacted by interpreting its text.
Congress. In Pharmaceutical and Health Care
Association of the Philippines v. Duque III, et al.:
In his concurring opinion in Intellectual Property
Association of the Philippines v. Ochoa,143 Justice
Under the 1987 Constitution, international law can Arturo D. Brion (Justice Brion) discussed the
become part of the sphere of domestic law either by antecedents of the transformation method:
transformation or incorporation. The
transformation method requires that an
international law be transformed into a domestic
Under the 1935 Constitution, the President has the
law through a constitutional mechanism such as
"power, with the concurrence of a majority of all
local legislation. The incorporation method applies
the members of the National Assembly, to make
when, by mere constitutional declaration,
treaties . . . ." The provision, Article VII, Section
international law is deemed to have the force of
11, paragraph 7 is part of the enumeration of the
domestic law.
President's powers under Section 11, Article VII of
the 1935 Constitution. This recognition clearly
marked treaty making to be an executive function,
Treaties become part of the law of the land through but its exercise was nevertheless subject to the
transformation pursuant to Article VII, Section 21 concurrence of the National Assembly. A
of the Constitution ... Thus, treaties or conventional subsequent amendment to the 1935 Constitution,
international law must go through a process which divided the country's legislative branch into
prescribed by the Constitution for it to be two houses, transferred the function of treaty
transformed into municipal law that can be applied concurrence to the Senate, and required that two-
to domestic conflicts.139 thirds of its members assent to the treaty.
By 1973, the Philippines adopted a presidential Prior to and even without concurrence, the treaty,
parliamentary system of government, which once ratified, is valid and binding upon the
merged some of the functions of the Executive and Philippines in the international plane. But in order
Legislative branches of government in one branch. to take effect in the Philippine domestic plane, it
Despite this change, concurrence was still seen as would have to first undergo legislative concurrence
necessary in the treaty-making process, as Article as required under the Constitution.
VIII, Section 14 required that a treaty should be
first concurred in by a majority of all Members of
the Batasang Pambansa before they could be Third, that the provision had been couched in the
considered valid and effective in the Philippines, negative emphasizes the mandatory nature of
thus: legislative concurrence before a treaty may be
considered valid and effective in the Philippines.

SEC. 14. (1) Except as otherwise provided in this

Constitution, no treaty shall be valid and effective The phrasing of Article VIII, Section 14 of the
unless concurred in by a majority of all the 1973 Constitution has been retained in the 1987
Members of the Batasang Pambansa. Constitution, except for three changes: First, the
Batasang Pambansa has been changed to the Senate
to reflect the current setup of our legislature and
This change in the provision on treaty ratification our tripartite system of government. Second, the
and concurrence is significant for the following vote required has been increased to two-thirds,
reasons: reflective of the practice under the amended 1935
Constitution. Third, the term "international
agreement" has been added, aside from the term
First, the change clarified the effect of the lack of treaty. Thus, aside from treaties, "international
concurrence to a treaty, that is, a treaty without agreements" now need concurrence before being
legislative concurrence shall not be valid and considered as valid and effective in the
effective in the Philippines. Philippines.144 (Emphasis supplied, citations
omitted)

Second, the change of wording also reflected the

dual nature of the Philippines' approach in The 1935145 and 1973146 Constitutions used the
international relations. Under this approach, the same words as Article II, Section 2147 of the
Philippines sees international law and its present Constitution does, and adopted "the
international obligations from two perspectives: generally accepted principles of international law
first, from the international plane, where as part of the law of the land."148 However, there
international law reigns supreme over national have been significant changes in constitutional
laws; and second, from the domestic plane, where provisions on treaty-making.
the international obligations and international
customary laws are considered in the same footing
as national laws, and do not necessarily prevail Article VII, Section 10(7) of the 1935 Constitution
over the latter. The Philippines' treatment of reads:
international obligations as statutes in its domestic
plane also means that they cannot contravene the
Constitution, including the mandated process by ARTICLE VII
which they become effective in Philippine
jurisdiction. Executive Department

Thus, while a treaty ratified by the President is SECTION 10. . . .

binding upon the Philippines in the international
plane, it would need the concurrence of the
legislature before it can be considered as valid and ....
effective in the Philippine domestic jurisdiction.
 xxx xxx xxx

(7) The President shall have the power, with the

concurrence of two-thirds of all the Members of the
Senate to make treaties, and with the consent of the SECTION 15. Any provision of paragraph one,
Commission on Appointments, he shall appoint Section fourteen, Article Eight and of this Article
ambassadors, other public ministers, and consuls. notwithstanding, the Prime Minister may enter into
He shall receive ambassadors and other public international treaties or agreements as the national
ministers duly accredited to the Government of the welfare and interest may require.
Philippines.

This Court, in the recent case of Saguisag v.

Under the 1935 Constitution, the power to make Executive Secretary, characterized this exception
treaties was lodged in the President, subject to the as having "left a large margin of discretion that the
Senate's concurrence. Although the 1973 President could use to bypass the Legislature
Constitution shifted our system of government altogether." This Court noted this as "a departure
from presidential to parliamentary, its provision on from the 1935 Constitution, which explicitly gave
treaty-making still required the concurrence of the the President the power to enter into treaties only
Batasang Pambansa, the body on which legislative with the concurrence of the National Assembly."
power rested:

As in the 1935 Constitution, this exception is no

ARTICLE VIII longer present in the current formulation of the
provision. The power and responsibility to enter
Batasang Pambansa into treaties is now shared by the executive and
legislative departments. Furthermore, the role of
the legislative department is expanded to cover not
SECTION 14. (1) Except as otherwise provided in only treaties but international agreements in
this Constitution, no treaty shall be valid and general as well, thus:
effective unless concurred in by a majority of all
the Members of the Batasang Pambansa. (Emphasis
supplied) ARTICLE VII Executive Department

xxx xxx xxx

On this note, it has been previously surmised that:

SECTION 21. No treaty or international agreement

shall be valid and effective unless concurred in by
The concurrence of the Batasang Pambansa was at least two-thirds of all the Members of the Senate.
duly limited to treaties.

In discussing the power of the Senate to concur

However, the first clause of this provision, "except with treaties entered into by the President, this
as otherwise provided," leaves room for the Court in Bayan v. Zamora remarked on the
exception to the requirement of legislative significance of this legislative power:
concurrence. Under Article XIV, Section 15 of the
1973 Constitution, requirements of national welfare
and interest allow the President to enter into not
only treaties but also international agreements For the role of the Senate in relation to treaties is
without legislative concurrence, thus: essentially legislative in character; the Senate, as an
independent body possessed of its own erudite
mind, has the prerogative to either accept or reject
the proposed agreement, and whatever action it
ARTICLE XIV THE NATIONAL ECONOMY takes in the exercise of its wide latitude of
AND THE PATRIMONY OF THE NATION discretion, pertains to the wisdom rather than the
legality of the act. In this sense, the Senate partakes
a principal, yet delicate, role in keeping the It may cover other international agreements,
principles of separation of powers and of checks including those classified as executive agreements,
and balances alive and vigilantly ensures that these if: (1) they are more permanent in nature; (2) their
cherished rudiments remain true to their form in a purposes go beyond the executive function of
democratic government such as ours. The carrying out national policies and traditions; and
Constitution thus animates, through this treaty- (3) they amend existing treaties or statutes.
concurring power of the Senate, a healthy system
of checks and balances indispensable toward our
nation's pursuit of political maturity and growth. As long as the subject matter of the agreement
True enough, rudimentary is the principle that covers political issues and national policies of a
matters pertaining to the wisdom of a legislative act more permanent character, the international
are beyond the ambit and province of the courts to agreement must be concurred in by the Senate.149
inquire. (Emphasis supplied, citations omitted)

Therefore, having an option does not necessarily The constitutional framers were not linguistically
mean absolute discretion on the choice of ignorant. Treaties follow a different process to
international agreement. There are certain national become part of the law of the land. Their
interest issues and policies covered by all sorts of delineation from generally accepted principles of
international agreements, which may not be dealt international law was deliberate. So was the use of
with by the President alone. An interpretation that different terminologies and mechanisms in
the executive has unlimited discretion to determine rendering them valid and effective.
if an agreement requires senate concurrence not
only runs counter to the principle of checks and
balances; it may also render the constitutional
In consonance with the Constitution and existing
requirement of senate concurrence meaningless:
laws, presidents act within their competence when
they enter into treaties. However, for treaties to be
effective in this jurisdiction, Senate concurrence
If executive-agreement authority is un-contained, must be obtained. The president may not engage in
and if what may be the proper subject-matter of a foreign relations in direct contravention of the
treaty may also be included within the scope of Constitution and our laws:
executive-agreement power, the constitutional
requirement of Senate concurrence could be
rendered meaningless. The requirement could be
After the treaty is signed by the state's
circumvented by an expedient resort to executive
representative, the President, being accountable to
agreement.
the people, is burdened with the responsibility and
the duty to carefully study the contents of the treaty
and ensure that they are not inimical to the interest
The definite provision for Senate concurrence in of the state and its people.150
the Constitution indomitably signifies that there
must be a regime of national interests, policies and
problems which the Executive branch of the
As explained in Pimentel, Jr.:
government cannot deal with in terms of foreign
relations except through treaties concurred in by
the Senate under Article VII, Section 21 of the
Constitution.ℒαwρhi ৷ The problem is how to In our system of government, the President, being
define that regime, i.e., that which is outside the the head of state, is regarded as the sole organ and
scope of executive-agreement power of the authority in external relations and is the country's
President and which exclusively belongs to treaty- sole representative with foreign nations. As the
making as subject to Senate concurrence. chief architect of foreign policy, the President acts
as the country's mouthpiece with respect to
international affairs. Hence, the President is vested
with the authority to deal with foreign states and
Article VII, Section 21 does not limit the
governments, extend or withhold recognition,
requirement of senate concurrence to treaties alone.
maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign
relations. In the realm of treaty-making, the
President has the sole authority to negotiate with (2) The Congress may, by law, authorize the
other states. President to fix within specified limits, and subject
to such limitations and restrictions as it may
impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
Nonetheless, while the President has the sole imposts within the framework of the national
authority to negotiate and enter into treaties, the development program of the Government.
Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members
of the Senate for the validity of the treaty entered
into by him. . . . (3) Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-
profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
.... used for religious, charitable, or educational
purposes shall be exempt from taxation.

The participation of the legislative branch in the

treaty-making process was deemed essential to (4) No law granting any tax exemption shall be
provide a check on the executive in the field of passed without the concurrence of a majority of all
foreign relations. By requiring the concurrence of the Members of the Congress.
the legislature in the treaties entered into by the
President, the Constitution ensures a healthy
system of checks and balance necessary in the
nation's pursuit of political maturity and Conversely, some executive powers under Article
growth.151 (Emphasis supplied, citations omitted) VII of the Constitution are checked by the
legislature, by one of its chambers, by legislative
committees, or by other bodies attached to the
legislature:
The context of the provision in question, alongside
others, provides enlightenment. Under Article VI
of the Constitution, legislative power is checked by
the executive: SECTION 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers
SECTION 23. (1) The Congress, by a vote of two- and consuls, or officers of the armed forces from
thirds of both Houses in joint session assembled, the rank of colonel or naval captain, and other
voting separately, shall have the sole power to officers whose appointments are vested in him in
declare the existence of a state of war. this Constitution. He shall also appoint all other
officers of the Government whose appointments
are not otherwise provided for by law, and those
(2) In times of war or other national emergency, the whom he may be authorized by law to appoint. The
Congress may, by law, authorize the President, for Congress may, by law, vest the appointment of
a limited period and subject to such restrictions as other officers lower in rank in the President alone,
it may prescribe, to exercise powers necessary and in the courts, or in the heads of departments,
proper to carry out a declared national policy. agencies, commissions, or boards.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof. ....

SECTION 28. (1) The rule of taxation shall be SECTION 18. The President shall be the
uniform and equitable. The Congress shall evolve a Commander-in-Chief of all armed forces of the
progressive system of taxation. Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or SECTION 21. No treaty or international agreement
suppress lawless violence, invasion or rebellion. In shall be valid and effective unless concurred in by
case of invasion or rebellion, when the public at least two-thirds of all the Members of the Senate.
safety requires it, he may, for a period not (Emphasis supplied)
exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or
any part thereof under martial law. Within forty- In sum, treaty-making is a function lodged in the
eight hours from the proclamation of martial law or executive branch, which is headed by the president.
the suspension of the privilege of the writ of habeas Nevertheless, a treaty's effectivity depends on the
corpus, the President shall submit a report in person Senate's concurrence, in accordance with the
or in writing to the Congress. The Congress, voting Constitution's system of checks and balances.
jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke
such proclamation or suspension, which revocation
VII
shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the
same manner, extend such proclamation or
suspension for a period to be determined by the While Senate concurrence is expressly required to
Congress, if the invasion or rebellion shall persist make treaties valid and effective, no similar
and public safety requires it. express mechanism concerning withdrawal from
treaties or international agreements is provided in
the Constitution or any statute. Similarly, no
constitutional or statutory provision grants the
The Congress, if not in session, shall, within
president the unilateral power to terminate treaties.
twenty-four hours following such proclamation or
This vacuum engenders the controversy around
suspension, convene in accordance with its rules
which the present consolidated Petitions revolve.
without any need of a call.

Frameworks in evaluating executive action, vis-à-

The Supreme Court may review, in an appropriate
vis legislative prerogatives, have been formulated
proceeding filed by any citizen, the sufficiency of
in other jurisdictions. Judicious discernment makes
the factual basis of the proclamation of martial law
these frameworks worthy of consideration.
or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
To be clear, however, while legal principles in a
legal system similar to ours may hold persuasive
value in our courts, we will not adopt such
....
principles without considering our own unique
cultural, political, and economic contexts. The
Philippines has long struggled against colonialism.
SECTION 19. Except in cases of impeachment, or We will not betray efforts at evolving our own just
as otherwise provided in this Constitution, the but unique modalities for judicial review by
President may grant reprieves, commutations and summarily adopting foreign notions.
pardons, and remit fines and forfeitures, after
conviction by final judgment.
In Goldwater v. Carter,152 a case resolved by the
United States Supreme Court, certain members of
He shall also have the power to grant amnesty with Congress assailed then President Jimmy Carter's
the concurrence of a majority of all the Members of (President Carter) unilateral abrogation of the Sino-
the Congress. American Mutual Defense Treaty. Relevant events
were chronicled in a Yale Law journal article:

....
On December 15, 1978, President Carter
announced his intention to recognize and establish
diplomatic relations with the People's Republic of
China and to terminate, as of January 1, 1980, the
1954 Mutual Defense Treaty between the United In a Resolution, the United States Supreme Court
States and Taiwan. Seven U.S. Senators and eight granted the petition for certiorari, vacated the Court
Members of the House of Representatives sued the of Appeals judgment, and remanded the case to the
President and the Secretary of State in the U.S. District Court, "with directions to dismiss the
District Court for the District of Columbia. They complaint."156
sought an injunction and a declaration that the
President's attempt to unilaterally terminate the
treaty was "unconstitutional, illegal, null and void" Four justices observed that there is an "absence of
unless "made by and with the full consultation of any constitutional provision governing the
the entire Congress, and with either the advice and termination of a treaty" and that "different
consent of the Senate, or the approval of both termination procedures may be appropriate for
Houses of Congress." different treaties."157

When the 96th Congress opened, several Senators Observations articulated in Goldwater reveal stark
introduced resolutions asserting that the President similarities between the American and the
had encroached on Congress's constitutional role Philippine legal systems concerning ensuing
with respect to treaty termination generally and the debates on the necessity of Senate concurrence in
Taiwan Mutual Defense Treaty in particular. In abrogating treaties:
October 1979, the district court held that to be
effective under the Constitution, the President's
notice of termination had to receive the approval of No constitutional provision explicitly confers upon
either two-thirds of the Senate or a majority of both the President the power to terminate treaties.
houses of Congress. Further, Art. II, 2, of the Constitution authorizes
the President to make treaties with the advice and
consent of the Senate. Article VI provides that
A fragmented D.C. Circuit, sitting en banc, heard treaties shall be a part of the supreme law of the
the case on an expedited basis on November 13 and land. These provisions add support to the view that
just seventeen days later ruled for the President. the text of the Constitution does not unquestionably
Declining to treat the matter as a political question, commit the power to terminate treaties to the
the circuit court instead held on the merits that the President alone....
President had not exceeded his authority in
terminating the bilateral treaty in accordance with
its terms. Pressed to decide the case before the We are asked to decide whether the President may
designated January 1, 1980 termination date, the terminate a treaty under the Constitution without
Supreme Court issued no majority opinion. Instead, congressional approval. Resolution of the question
in a 6-3 per curiam decision, the Court dismissed may not be easy, but it only requires us to apply
the complaint without oral argument as normal principles of interpretation to the
nonjusticiable.153 (Citations omitted) constitutional provisions at issue.... The present
case involves neither review of the President's
activities as Commander in Chief nor
Even back in 1979, before the case reached the impermissible interference in the field of foreign
United States Supreme Court, Circuit Court Judge affairs. Such a case would arise if we were asked to
MacKinnon154 had previously cautioned that a decide, for example, whether a treaty required the
grant of absolute power of unilateral termination to President to order troops into a foreign country. But
the president may be easily used in the future to "it is error to suppose that every case or
"develop other excuses to feed upon congressional controversy which touches foreign relations lies
prerogatives that a Congress lacking in vigilance beyond judicial cognizance."... This case "touches"
allows to lapse into desuetude."155 The District foreign relations, but the question presented to us
Court eventually ruled that President Carter did not concerns only the constitutional division of power
exceed his authority in terminating the bilateral between Congress and the President.158 (Citations
agreement without Senate concurrence. omitted, emphasis supplied)
 Professor Koh considered that, as a functional
matter, overboard unilateral executive power to
Yale Law School Professor Harold Hongju Koh159 terminate treaties risks presidents making "overly
(Professor Koh) opined that a president has no hasty, partisan, or parochial withdrawals," thus
general unilateral power to terminate treaties; weakening systemic stability, as well as the
instead, Senate concurrence on treaty abrogation is credibility and negotiating leverage of all
imperative.160 He posited: presidents.164

In future cases, the constitutional requirements for The mirror principle echoes the points raised by
termination should be decided based on the type of Justice Robert H. Jackson's renowned
agreement in question, the degree of congressional concurrence165 in the separation-of-powers case,
approval and subject matter in question, and Youngstown Sheet & Tube Co. v. Sawyer.166
Congress's effort to guide the termination and There, he laid down three categories of executive
withdrawal process by framework legislation.161 action as regards the necessity of concomitant
(Emphasis supplied) legislative action:

Professor Koh proposed the operation of what he Category One: "when the President acts pursuant to
dubbed as the "mirror principle," where "the degree an express or implied authorization of Congress,
of legislative approval needed to exit an his authority is at its maximum, for it includes all
international agreement must parallel the degree of that he possesses in his own right plus all that
legislative approval originally required to enter Congress can delegate";
it."162 He further said:

Category Two: "when the President acts in absence

Under the mirror principle, the Executive may of either a congressional grant or denial of
terminate, without congressional participation, authority, he can only rely upon his own
genuinely "sole" executive agreements that have independent powers, but there is a zone of twilight
lawfully been made without congressional input. in which he and Congress may have concurrent
But the President may not entirely exclude authority, or in which its distribution is uncertain";
Congress from the withdrawal or termination and
process regarding congressional-executive
agreements or treaties that were initially concluded
with considerable legislative input. That principle
would make Congress's input necessary for Category Three: "when the President takes
disengagement even from such international measures incompatible with the expressed or
agreements as the Paris Climate Agreement, which implied will of Congress, his power is at his lowest
broadly implicate Congress's commerce powers, ebb, for then he can rely only upon his own
and which—while never subjected to an up-or- constitutional powers minus any constitutional
down vote—were nevertheless enacted against a powers of Congress over the matter."167
significant background of congressional awareness
and support that implicitly authorized the
presidential making, but not the unmaking, of This framework has since been dubbed as the
climate change agreements. Congress also should Youngstown framework,168 and was adopted in
participate in an attempt to withdraw the United subsequent American cases, among them Medellin
States even from such political agreements as the v. Texas.169
Iran Nuclear Deal (also known as the JCPOA),
where the President is exercising plenary foreign
commerce powers that were delegated by Congress Medellin involved a review of the president's
and where the U.S. termination has now triggered power in foreign affairs. In turn, Medellin was
actionable claims of violation of international considered in our jurisdiction by Chief Justice
law.163 (Citations omitted) Reynato S. Puno (Chief Justice Puno) in examining
the constitutionality of the Visiting Forces
Agreement.170 Chief Justice Puno, opined:
 individuals were entitled to a review and
reconsideration of their U.S. state court convictions
An examination of Bayan v. Zamora, which upheld and sentences regardless of their failure to comply
the validity of the VFA, is necessary in light of a with generally applicable state rules governing
recent change in U.S. policy on treaty enforcement. challenges to criminal convictions.
Of significance is the case of Medellin v. Texas,
where it was held by the U.S. Supreme Court that
while treaties entered into by the President with the
concurrence of the Senate are binding international In Sanchez-Llamas v. Oregon — issued after
commitments, they are not domestic law unless Avena but involving individuals who were not
Congress enacts implementing legislation or unless named in the Avena judgment, contrary to the ICJ's
the treaty itself is "self-executing". determination — the U.S. Federal Supreme Court
held that the Vienna Convention did not preclude
the application of state default rules. The U.S.
President, George W. Bush, then issued a
An Examination of Medellin v. Texas Memorandum (President's Memorandum) stating
that the United States would discharge its
international obligations under Avena by having
In Medellin v. Texas, Jose Ernesto Medellin State courts give effect to the decision.
(Medellin), a Mexican national, was convicted of
capital murder and sentenced to death in Texas for
the gang rape and brutal murders of two Houston Relying on Avena and the President's
teenagers. His conviction and sentence were Memorandum, Medellin filed a second Texas state-
affirmed on appeal. court habeas corpus application, challenging his
state capital murder conviction and death sentence
on the ground that he had not been informed of his
Medellin then filed an application for post- Vienna Convention rights. The Texas Court of
conviction relief and claimed that the Vienna Criminal Appeals dismissed Medellin's application
Convention on Consular Relations (Vienna as an abuse of the writ, since under Texas law, a
Convention) accorded him the right to notify the petition for habeas corpus may not be filed
Mexican consulate of his detention; and because successively, and neither Avena nor the President's
the local law enforcement officers failed to inform Memorandum was binding federal law that could
him of this right, he prayed for the grant of a new displace the State's limitations on filing successive
trial. habeas applications.

The trial court, as affirmed by the Texas Court of Medellin repaired to the U.S. Supreme Court. In his
Criminal Appeals, rejected the Vienna Convention petition, Medellin contends that the Optional
claim. It was ruled that Medellin failed to show that Protocol, the United Nations Charter, and the ICJ
any non-notification of the Mexican authorities Statute supplied the "relevant obligation" to give
impacted on the validity of his conviction or the Avena judgment binding effect in the domestic
punishment. Medellin then filed his first habeas courts of the United States.
corpus petition in the Federal District Court, which
also rejected his petition. It held that Medellin
failed to show prejudice arising from the Vienna The Supreme Court of the United States ruled that
Convention. neither Avena nor the President's Memorandum
constitutes directly enforceable federal law that
pre-empts state limitations on the filing of
While Medellin's petition was pending, the successive habeas corpus petitions. It held that
International Court of Justice (ICJ) issued its while an international treaty may constitute an
decision in the Case Concerning Avena and Other international commitment, it is not binding
Mexican Nationals (Avena). The ICJ held that the domestic law unless Congress has enacted statutes
U.S. violated Article 36 (1) (b) of the Vienna implementing it or unless the treaty itself is "self-
Convention by failing to inform 51 named Mexican executing". It further held that decisions of the ICJ
nationals, including Medellin, of their Vienna are not binding domestic law; and that absent an act
Convention rights. The ICJ ruled that those named
of Congress or Constitutional authority, the US.
President lacks the power to enforce international
treaties or decisions of the ICJ. IV.B (2) Standards in Examining the President's
Treaty-Making Powers

Requirements for Domestic Enforceability of

Treaties in the U.S. Because the Executive's foreign relations power
operates within the larger constitutional framework
of separation of powers, I find the examination of
the President's actions through this larger
The new ruling is clear-cut: "while a treaty may framework to be the better approach m the present
constitute an international commitment, it is not cases. This analytical framework, incidentally, is
binding domestic law unless Congress has enacted not the result of my original and independent
statutes implementing it or the treaty itself conveys thought; it was devised by U.S. Supreme Court
an intention that it be "self-executing" and is Associate Justice Robert Jackson in his Concurring
ratified on that basis." Opinion in Youngstown Sheet & Tube Co. v.
Sawyer.

The Avena judgment creates an international law

obligation on the part of the United States, but it is Justice Jackson's framework for evaluating
not automatically binding domestic law because executive action categorizes the President's actions
none of the relevant treaty sources — the Optional into three: first, when the President acts with
Protocol, the U.N. Charter, or the ICJ Statute — authority from the Congress, his authority is at its
creates binding federal law in the absence of maximum, as it includes all the powers he
implementing legislation, and no such legislation possesses in his own right and everything that
has been enacted. Congress can delegate.

The Court adopted a textual approach in Second, "when the President acts in the absence of
determining whether the relevant treaty sources are either a congressional grant or denial of authority,
self-executory[.]171 (Emphasis supplied, citations he can only rely on his own independent powers,
omitted) but there is a [twilight zone where] he and
Congress may have concurrent authority, or where
its distribution is uncertain." In this situation,
Later, Saguisag v. Ochoa172 reviewed the presidential authority can derive support from
constitutionality of the Enhanced Defense "congressional inertia, indifference or quiescence."
Cooperation Agreement between the Republic of
the Philippines and the United States of America.
In Saguisag, Justice Brion found the Youngstown Third, "when the President takes measures
framework to be a better approach than simply incompatible with the expressed or implied will of
anchoring this Court's position in one constitutional Congress, his power is at its lowest ebb," and the
provision. He proposed the examination of the Court can sustain his actions "only by disabling the
president's act in the context of how our system of Congress from acting upon the subject."
government works:

This framework has been recently adopted by the

[E]ntry into international agreements is a shared U.S. Supreme Court in Medellin v. Texas, a case
function among the three branches of government. involving the President's foreign affairs powers and
In this light and in the context that the President's one that can be directly instructive in deciding the
actions should be viewed under our tripartite present case.
system of government, I cannot agree with the
ponencia's assertion that the case should he
examined solely and strictly through the
constitutional limitation found in Article XVIII, In examining the validity of an executive act, the
Section 25 of the Constitution. Court takes into consideration the varying degrees
of authority that the President possesses. Acts of "governmental property." They may be acquired
the President with the authorization of Congress under the concept of dominium, the state as a
should have the "widest latitude of judicial persona in law not being deprived of such an
interpretation" and should be "supported by the attribute, thereafter to be administered by virtue of
strongest of presumptions." For the judiciary to its prerogative of imperium. What is a more
overrule the executive action, it must decide that appropriate agency for assuring that they be not
the government itself lacks the power. In contrast, wasted or frittered away than the Executive, the
executive acts that are without congressional department precisely entrusted with management
imprimatur would have to be very carefully functions? It would thus appear that for the
examined.173 (Emphasis in the original, citations President to refrain from taking positive steps and
omitted) await the action of the then Congress could be
tantamount to dereliction of duty. He had to act;
time was of the essence. Delay was far from
The Youngstown framework was favorably conducive to public interest. It was as simple as
considered and employed by this Court in its that. Certainly then, it could be only under the most
discussions in Gonzales v. Marcos174 penned by strained construction of executive power to
Chief Justice Enrique M. Fernando. conclude that in taking the step he took, he
transgressed on terrain constitutionally reserved for
Congress.
In Gonzales, Ramon A. Gonzales alleged that in
issuing Executive Order No. 30, the President
encroached on the legislative prerogative when it This is not to preclude legislative action in the
created: premises. While to the Presidency under the 1935
Constitution was entrusted the responsibility for
administering public property, the then Congress
could provide guidelines for such a task. Relevant
[A] trust for the benefit of the Filipino people under
in this connection is the excerpt from an opinion of
the name and style of the Cultural Center of the
Justice Jackson in Youngstown Sheet & Tube Co.
Philippines entrusted with the task to construct
v. Sawyer "When the President acts in absence of
national theatre, a national music hall, an arts
either a congressional grant or denial of authority,
building and facilities, to awaken our people's
he can only rely upon his own independent powers,
consciousness in the nation's cultural heritage and
but there is a zone of twilight in which he and
to encourage its assistance in the preservation,
Congress may have concurrent authority, or in
promotion, enhancement and development thereof,
which its distribution is uncertain. Therefore,
with the Board of Trustees to be appointed by the
congressional inertia, indifference or quiescence
President, the Center having as its estate the real
may sometimes, at least as a practical matter,
and personal property vested in it as well as
enable, if not invite, measures on independent
donations received, financial commitments that
presidential responsibility. In this area, any actual
could thereafter be collected, and gifts that may be
test of power is likely to depend on the imperative
forthcoming in the future[.]175 (Citation omitted)
of events and contemporary imponderables rather
than on abstract theories of law." To vary the
phraseology, to recall Thomas Reed Powell, if
However, during the pendency of the case, Congress would continue to keep its peace
Presidential Decree No. 15 was promulgated, notwithstanding the action taken by the executive
creating the Cultural Center of the Philippines. This department, it may be considered as silently vocal.
development prompted this Court to dismiss the In plainer language, it could be an instance of
appeal. In so doing, this Court proceeded to silence meaning consent. The Executive Order
explain: assailed was issued on June 25, 1966. Congress
until the time of the filing of the petition on August
26, 1969 remained quiescent. Parenthetically, it
It would be an unduly narrow or restrictive view of may be observed that petitioner waited until almost
such a principle if the public funds that accrued by the day of inaugurating the Cultural Center on
way of donation from the United States and September 11, 1969 before filing his petition in the
financial contributions for the Cultural Center lower court. However worthy of commendation
project could not be legally considered as was his resolute determination to keep the
Presidency within the bounds of its competence, it the president's acts in the exercise of a power
cannot be denied that the remedy, if any, could be shared with the legislature. However, their
supplied by Congress asserting itself in the concepts and methods cannot be adopted
premises. Instead, there was apparent conformity mechanically and indiscriminately. A compelling
on its part to the way the President saw fit to wisdom underlies them, but operationalizing them
administer such governmental property.176 domestically requires careful consideration and
(Emphasis supplied, citations omitted) adjustment in view of circumstances unique to the
Philippine context.

The Youngstown framework was also employed by

Chief Justice Puno in evaluating the situations The mirror principle is anchored on balancing
subject of Bayan v. Zamora177 and Akbayan v. executive action with the extent of legislative
Aquino.178 participation in entering into treaties. It is sound
logic to maintain that the same constitutional
requirements of congressional approval—which
In Bayan, Chief Justice Puno, citing the attended the effecting of treaties following original
Youngstown framework, stated: "The U.S. entry into them—must also be followed in their
Supreme Court itself has 'intimated that the termination.
President might act in external affairs without
congressional authority, but not that he might act
contrary to an Act of Congress."'179 He reiterated As proposed by Chief Justices Fernando and Puno,
this in Akbayan. along with Justice Brion, the Youngstown
framework may also guide us in reviewing
executive action vis-à-vis the necessity of
Thus, in appropriate cases, the validity of the concomitant legislative action in withdrawing from
president's actions—when there are countervailing treaties. When the president clearly shares power
legislative prerogatives—may be appraised in light with the legislature, and yet disavows treaties
of the Youngstown framework. despite no accompanying action by Congress, the
Youngstown framework considers this an instance
when the president relies exclusively on their
limited independent powers. Thus, the validity of
All told, the president, as primary architect of
the withdrawal, the exercise of which should have
foreign policy, negotiates and enters into
been concurrent with Congress, must be critically
international agreements. However, the president's
examined. The basic, underlying fact of powers
power is not absolute, but is checked by the
being shared makes it difficult to sustain the
Constitution, which requires Senate concurrence.
president's unilateral action.
Treaty-making is a power lodged in the executive,
and is balanced by the legislative branch. The
textual configuration of the Constitution hearkens
both to the basic separation of powers and to a Having laid out the parameters and underlying
system of checks and balances. Presidential principles of relevant foreign concepts, and
discretion is recognized, but it is not absolute. considering our own historical experience and
While no constitutional mechanism exists on how prevailing legal system, this Court adopts the
the Philippines withdraws from an international following guidelines as the modality for evaluating
agreement, the president's unbridled discretion vis- cases concerning the president's withdrawal from
à-vis treaty abrogation may run counter to the basic international agreements.
prudence underlying the entire system of entry into
and domestic operation of treaties.
First, the president enjoys some leeway in
withdrawing from agreements which he or she
VIII determines to be contrary to the Constitution or
statutes.

The mirror principle and the Youngstown

framework are suitable starting points in reviewing
The Constitution is the fundamental law of the
land. It mandates the president to "ensure that the
laws be faithfully executed."180 Both in In enacting laws, both houses of Congress
negotiating and enforcing treaties, the president participate. A bill undergoes three readings in each
must ensure that all actions are in keeping with the chamber. A bill passed by either chamber is
Constitution and statutes. Accordingly, during scrutinized by the other, and both chambers
negotiations, the president can insist on terms that consolidate their respective versions through a
are consistent with the Constitution and statutes, or bicameral conference. Only after extensive
refuse to pursue negotiations if those negotiations' participation by the people's elected representatives
direction is such that the treaty will turn out to be —members of the Senate who are elected at large,
repugnant to the Constitution and our statutes. and, those in the House of Representatives who
Moreover, the president should not be bound to represent districts or national, regional, or sectoral
abide by a treaty previously entered into should it party-list organizations—is a bill presented to the
be established that such treaty runs afoul of the president for signature.
Constitution and our statutes.

In contrast, in the case of a treaty or international

There are treaties that implement mandates agreement, the president, or those acting under
provided in the Constitution, such as human rights. their authority, negotiates its terms. It is merely the
Considering the circumstances of each historical finalized instrument that is presented to the Senate
period our nation encounters, there will be many alone, and only for its concurrence. Following the
means to acknowledge and strengthen existing president's signature, the Senate may either agree
constitutional mandates. Participating in and or disagree to the entirety of the treaty or
adhering to the creation of a body such as the international agreement. It cannot refine or modify
International Criminal Court by becoming a party the terms. It cannot improve what it deems
to the Rome Statute is one such means, but so is deficient, or tame apparently excessive stipulations.
passing a law that, regardless of international
relations, replicates many of the Rome Statute's
provisions and even expands its protections. In The legislature's highly limited participation means
such instances, it is not for this Court—absent that a treaty or international agreement did not
concrete facts creating an actual controversy—to weather the rigors that attend regular lawmaking. It
make policy judgments as to which between a is true that an effective treaty underwent a special
treaty and a statute is more effective, and thus, process involving one of our two legislative
preferable. chambers, but this also means that it bypassed the
conventional republican mill.

Within the hierarchy of the Philippine legal system

—that is, as instruments akin to statutes—treaties Having passed scrutiny by hundreds of the people's
cannot contravene the Constitution. Moreover, elected representatives in two separate chambers
when repugnant to statues enacted by Congress, which are committed—by constitutional dictum—
treaties and international agreements must give to adopting legislation, statutes enacted by
way. Congress necessarily carry greater democratic
weight than an agreement negotiated by a single
person. This is true, even if that person is the chief
Article VII, Section 21 provides for legislative executive who acts with the aid of unelected
involvement in making treaties and international subalterns. This nuancing between treaties and
agreements valid and effective, that is, by making international agreements, on one hand, and statutes
Senate concurrence a necessary condition. From on the other, is an imperative borne by the
this, two points are discernible: (1) that there is a Philippines basic democratic and republican nature:
difference in the extent of legislative participation that the sovereignty that resides in the people is
in enacting laws as against rendering a treaty or exercised through elected representatives.181
international agreement valid and effective; and (2)
that Senate concurrence, while a necessary
condition, is not in itself a sufficient condition for Thus, a valid treaty or international agreement may
the validity and effectivity of treaties. be effective just as a statute is effective. It has the
force and effect of law. Still, statutes enjoy president performs his or her sworn duty in
preeminence over international agreements. In case abrogating a treaty that, per his or her bona fide
of conflict between a law and a treaty, it is the judgment, is not in accord with the Constitution or
statute that must prevail. a law. Between this and withdrawal owing to a
prior judicial determination of unconstitutionality
or repugnance to statute however, withdrawal
The second point proceeds from the first. The under this basis may be relatively more susceptible
validity and effectivity of a treaty rests on its being of judicial challenge. This may be the subject of
in harmony with the Constitution and statutes. The judicial review, on whether there was grave abuse
Constitution was ratified through a direct act of the of discretion concerning the president's arbitrary,
sovereign Filipino people voting in a plebiscite; baseless, or whimsical determination of
statutes are adopted through concerted action by unconstitutionality or repugnance to statute.
their elected representatives. Senate concurrence is
the formal act that renders a treaty or international
agreement effective, but it is not, in substance, the Second, the president cannot unilaterally withdraw
sole criterion for validity and effectivity. from agreements which were entered into pursuant
Ultimately, a treaty must conform to the to congressional imprimatur.
Constitution and statutes.

The Constitution devised a system of checks and

These premises give the president leeway in balances in the exercise of powers among the
withdrawing from treaties that he or she determines branches of government.1aшphi1 For instance, as a
to be contrary to the Constitution or statutes. legislative check on executive power, Congress
may authorize the president to fix tariff rates,
import and export quotas, tonnage and wharfage
In the event that courts determine the dues, and other duties or imposts subject to
unconstitutionality of a treaty, the president may limitations and restrictions it may impose.182 The
unilaterally withdraw from it. president can likewise grant amnesty, but with the
concurrence of a majority of all members of
Congress.183
Owing to the preeminence of statutes enacted by
elected representatives and hurdling the rigorous
legislative process, the subsequent enactment of a Considering that effecting treaties is a shared
law that is inconsistent with a treaty likewise function between the executive and the legislative
allows the president to withdraw from that treaty. branches,184 Congress may expressly authorize the
president to enter into a treaty with conditions or
limitations as to negotiating prerogatives.
As the chief executive, the president swore to
preserve and defend the Constitution, and faithfully
execute laws. This includes the duty of appraising Similarly, a statute subsequently passed to
executive action, and ensuring that treaties and implement a prior treaty signifies legislative
international agreements are not inimical to public approbation of prior executive action. This lends
interest. The abrogation of treaties that are greater weight to what would otherwise have been
inconsistent with the Constitution and statutes is in a course of action pursued through executive
keeping with the president's duty to uphold the discretion. When such a statute is adopted, the
Constitution and our laws. president cannot withdraw from the treaty being
implemented unless the statute itself is repealed.

Thus, even sans a judicial determination that a

treaty is unconstitutional, the president also enjoy When a treaty was entered into upon Congress's
much leeway in withdrawing from an agreement express will, the president may not unilaterally
which, in his or her judgment, runs afoul of prior abrogate that treaty. In such an instance, the
existing law or the Constitution. In ensuring president who signed the treaty simply
compliance with the Constitution and laws, the implemented the law enacted by Congress. While
the president performed his or her function as The Senate may concur with a treaty or
primary architect of international policy, it was in international agreement expressly indicating a
keeping with a statute. The president had no sole condition that withdrawal from it must likewise be
authority, and the treaty negotiations were with its concurrence. It may be embodied in the
premised nor only upon his or her own diplomatic same resolution in which it expressed its
powers, but on the specific investiture made by concurrence. It may also be that the Senate
Congress. This means that the president negotiated eventually indicated such a condition in a
not entirely out of his or her own volition, but with subsequent resolution. Encompassing legislative
the express mandate of Congress, and more action may also make it a general requirement for
important, within the parameters that Congress has Senate concurrence to be obtained in any treaty
set. abrogation. This may mean the Senate invoking its
prerogative through legislative action taken in
tandem with the House of Representatives—
While this distinction is immaterial in international through a statute or joint resolution—or by
law, jurisprudence has treated this as a class of adopting, on its own, a comprehensive resolution.
executive agreements. To recall an executive Regardless of the manner by which it is invoked,
agreement implements an existing policy, and is what controls is the Senate's exercise of its
entered "to adjust the details of a treaty . . . prerogative to impose concurrence as a condition.
pursuant to or upon confirmation by an act of the
Legislature; executive agreements [hinge] on prior
constitutional or legislative authorizations."185 As effecting treaties is a shared function between
Executive agreements "inconsistent with either a the executive and the legislative branches, the
law or a treaty are considered ineffective."186 Senate's power to concur with treaties necessarily
includes the power to impose conditions for its
concurrence. The requirement of Senate
Consistent with the mirror principle, any concurrence may then be rendered meaningless if it
withdrawal from an international agreement must is curtailed.
reflect how it was entered into. As the agreement
was entered pursuant to congressional imprimatur,
withdrawal from it must likewise be authorized by Petitioner Senator Pangilinan manifested that the
a law. Senate has adopted this condition in other
resolutions through which the Senate concurred
with treaties. However, the Senate imposed no such
Here, Congress passed Republic Act No. 9851 well condition when it concurred in the Philippines'
ahead of the Senate's concurrence to the Rome accession to the Rome Statute. Likewise, the
Statute. Republic Act No. 9851 is broader than the Senate has yet to pass a resolution indicating that
Rome Statute itself. This reveals not only an its assent should have been obtained in
independent, but even a more encompassing withdrawing from the Rome Statute. While there
legislative will—even overtaking the course—of was an attempt to pass such a resolution, it has yet
international relations. Our elected representatives to be calendared, and thus, has no binding effect on
have seen it fit to enact a municipal law that the Senate as a collegial body.
safeguards a broader scope of rights, regardless of
whether the Philippines formally joins the
International Criminal Court through accession to In sum, at no point and under no circumstances
the Rome Statute. does the president enjoy unbridled authority to
withdraw from treaties or international agreements.
Any such withdrawal must be anchored on a
Third, the President cannot unilaterally withdraw determination that they run afoul of the
from international agreements where the Senate Constitution or a statute. Any such determination
concurred and expressly declared that any must have clear and definite basis; any wanton,
withdrawal must also be made with its arbitrary, whimsical, or capricious withdrawal is
concurrence. correctible 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 them, so as to give effect to both since it is to be
the president and may prevent him or her from presumed that municipal law was enacted with
proceeding with withdrawal. proper regard for the generally accepted principles
of international law in observance of the
observance of the Incorporation Clause in the
IX above-cited constitutional provision[.] In a
situation, however, where the conflict is
irreconcilable and a choice has to be made between
a rule of international law and municipal law,
It is wrong to state that matters of foreign relations
jurisprudence dictates that municipal law should be
are political questions, and thus, beyond the
upheld by the municipal courts. . . for the reason
judiciary's reach.
that such courts are organs of municipal law and
are accordingly bound by it in all circumstances[.]
The fact that international law has been made part
The Constitution expressly states that this Court, of the law of the land does not pertain to or imply
through its power of judicial review, may declare the primacy of international law over national or
any treaty or international agreement municipal law in the municipal sphere. The
unconstitutional: doctrine of incorporation, as applied in most
countries, decrees that rules of international law are
given equal standing with, but are not superior to,
SECTION 5. The Supreme Court shall have the national legislative enactments. Accordingly, the
following powers: principle lex posterior derogat priori takes effect —
a treaty may repeal a statute and a statute may
repeal a treaty. In states where the constitution is
the highest law of the land, such as the Republic of
....
the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the
constitution[.]189 (Citations omitted)
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of
Lantion discussed the incorporation doctrine
lower courts in:
embodied in Article II, Section 2 of the
Constitution. Through incorporation, the
Philippines adopts international custom and general
(a) All cases in which the constitutionality or principle of law as part of the law of the land.
validity of any treaty, international or executive Lantion clarified that despite being part of the legal
agreement, law, presidential decree, proclamation, system, this "does not pertain to or imply the
order, instruction, ordinance, or regulation is in primacy of international law over national or
question.187 (Emphasis supplied) municipal law in the municipal sphere."190
However, it goes on to state that "lex posterior
derogat priori takes effect—a treaty may repeal a
We take this opportunity to clarify the statute and a statute may repeal a treaty."191
pronouncements made in Secretary of Justice v.
Lantion,188 where this Court summarized the rules
when courts are confronted with a conflict between Previously, we have extensively discussed how,
a rule of international law and municipal law. It despite being both sources of international law,
stated: treaties must be distinguished from generally
accepted principles of international law. Article II,
Section 2 automatically incorporates generally
The doctrine of incorporation is applied whenever accepted principles of international law into the
municipal tribunals (or local courts) are confronted domestic sphere. On the other hand, Article VII,
with situations in which there appears to be a Section 21 operates differently and concerns an
conflict between a rule of international law and the entirely distinct source of international law. It
provisions of the constitution or statute of the local signifies that treaties and international agreements
state. Efforts should first be exerted to harmonize are not automatically incorporated to the Philippine
legal system, but are transformed into domestic law among the legislative, executive, and judicial
by Senate concurrence. branches of the government, with each having
autonomy and supremacy within its own
sphere.196 This is moderated by a system of
Thus, Lantion’s pronouncement that—"lex checks and balances "carefully calibrated by the
posterior derogat priori takes effect—a treaty may Constitution to temper the official acts" of each
repeal a statute and a statute may repeal a branch.197
treaty"192—is misplaced and unsupported by its
internal logic. Its fallacy frustrates its viability as
precedent. Besides, it was mere obiter dictum as Among the three branches, the judiciary was
this Court did not even rule on the constitutionality designated as the arbiter in allocating constitutional
of the assailed Republic of the Philippines-United boundaries.198 Judicial power is defined in Article
States Extradition Treaty. VIII, Section 1 of the Constitution as:

Courts, in which judicial power is vested, may void SECTION 1. The judicial power shall be vested in
executive and legislative acts when they violate the one Supreme Court and in such lower courts as
Constitution.193 may be established by law.

The president is the head of state and chief Judicial power includes the duty of the courts of
executive. The Constitution mandates that in justice to settle actual controversies involving
performing his or her functions, the president must rights which are legally demandable and
"ensure that the laws be faithfully executed."194 enforceable, and to determine whether or not there
Thus, upon assuming office, a president swears to has been a grave abuse of discretion amounting to
"faithfully and conscientiously fulfill my duties. . . lack or excess of jurisdiction on the part of any
preserve and defend [the] Constitution, execute. . . branch or instrumentality of the government.
laws, do justice to every man, and consecrate
myself to the service of the Nation."195
A plain reading of the Constitution identifies two
instances when judicial power is exercised: (1) in
Accordingly, in fulfilling his or her functions as settling actual controversies involving rights which
primary architect of foreign policy, and in are legally demandable and enforceable; and (2) in
negotiating and enforcing treaties, all of the determining whether or not there has been a grave
president's actions must always be within the abuse of discretion amounting to a lack or excess of
bounds of the Constitution and our laws. This jurisdiction on the part of any branch or
mandate is exceeded when acting outside what the instrumentality of the government.
Constitution or our laws allow. When any such
excess is so grave, whimsical, arbitrary, or attended
by bad faith, it can be invalidated through judicial In justifying judicial review in its traditional sense,
review. Justice Jose P. Laurel in Angara v. Electoral
Commission199 underscored that when this Court
allocates constitutional boundaries, it neither
X asserts supremacy nor annuls the legislature's acts.
It simply carries out the obligations that the
Constitution imposed upon it to determine
The Petitions here raise interesting legal questions. conflicting claims and to establish the parties' rights
However, the factual backdrop of these in an actual controversy:
consolidated cases renders inopportune a ruling on
the issues presented to this Court.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope
Separation of powers is fundamental in our legal and extent of such powers? The Constitution itself
system. The Constitution delineated the powers has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary invoking the courts' expanded jurisdiction based on
mediates to allocate constitutional boundaries, it its power to relax its Rules. This is however an ad
does not assert any superiority over the other hoc approach that does not fully consider the
departments; it does not in reality nullify or accompanying implications, among them, that Rule
invalidate an act of the legislature, but only asserts 65 is an essentially distinct remedy that cannot
the solemn and sacred obligation assigned to it by simply be bodily lifted for application under the
the Constitution to determine conflicting claims of judicial power's expanded mode. The terms of Rule
authority under the Constitution and to establish for 65, too, are not fully aligned with what the Court's
the parties in an actual controversy the rights which expanded jurisdiction signifies and requires.
that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power On the basis of almost thirty years' experience with
of judicial review under the Constitution.200 the courts' expanded jurisdiction, the Court should
now fully recognize the attendant distinctions and
should be aware that the continued use of Rule 65
The latter conception of judicial power that on an ad hoc basis as the operational remedy in
jurisprudence refers to as the "expanded certiorari implementing its expanded jurisdiction may, in the
jurisdiction"201 was an innovation of the 1987 longer term, result in problems of uneven,
Constitution:202 misguided, or even incorrect application of the
courts' expanded mandate.203

This situation changed after 1987 when the new

Constitution "expanded" the scope of judicial Tañada v. Angara204 characterized this not only as
power[.] a power, but as a duty ordained by the Constitution:

.... It is an innovation in our political law. As

explained by former Chief Justice Roberto
Concepcion, "the judiciary is the final arbiter on the
In Francisco v. The House of Representatives, we question of whether or not a branch of government
recognized that this expanded jurisdiction was or any of its officials has acted without jurisdiction
meant "to ensure the potency of the power of or in excess of jurisdiction or so capriciously as to
judicial review to curb grave abuse of discretion by constitute an abuse of discretion amounting to
'any branch or instrumentalities of government."' excess of jurisdiction. This is not only a judicial
Thus, the second paragraph of Article VIII, Section power but a duty to pass judgment on matters of
1 engraves, for the first time in its history, into this nature "
black letter law the "expanded certiorari
jurisdiction" of this Court, whose nature and
purpose had been provided in the sponsorship As this Court has repeatedly and firmly emphasized
speech of its proponent, former Chief Justice in many cases, it will not shirk, digress from or
Constitutional Commissioner Roberto Concepcion. abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases,
.... committed by any officer, agency, instrumentality
or department of the government.205 (Emphasis
supplied, citations omitted)
Meanwhile that no specific procedural rule has
been promulgated to enforce this "expanded"
constitutional definition of judicial power and Despite its expansion, judicial review has its limits.
because of the commonality of "grave abuse of In deciding matters involving grave abuse of
discretion" as a ground for review under Rule 65 discretion, courts cannot brush aside the requisite
and the courts' expanded jurisdiction, the Supreme of an actual case or controversy. The clause
Court based on its power to relax its rules allowed articulating expanded certiorari jurisdiction
Rule 65 to be used as the medium for petitions requires a prima facie showing of grave abuse of
discretion in the assailed governmental act which, (a) there must be an actual case or controversy
in essence, is the actual case or controversy. Thus, calling for the exercise of judicial power; (b) the
"even now, under the regime of the textually person challenging the act must have the standing
broadened power of judicial review articulated in to question the validity of the subject act or
Article VIII, Section 1 of the 1987 Constitution, the issuance . . . ; (c) the question of constitutionality
requirement of an actual case or controversy is not must be raised at the earliest opportunity; and (d)
dispensed with."206 the issue of constitutionality must be the very lis
mota of the case.209 (Citations omitted)

In Provincial Bus Operators Association of the

Philippines v. Department of Labor and XI
Employment:207

The Petitions are moot. They fail to present a

An actual case or controversy is "one which persisting case or controversy that impels this
involves a conflict of legal rights, an assertion of Court's review.
opposite legal claims susceptible of judicial
resolution." A case is justiciable if the issues
presented are "definite and concrete, touching on In resolving constitutional issues, there must be an
the legal relations of parties having adverse legal "existing case or controversy that is appropriate or
interests." The conflict must be ripe for judicial ripe for determination, not conjectural or
determination, not conjectural or anticipatory; anticipatory."210
otherwise, this Court's decision will amount to an
advisory opinion concerning legislative or
executive action.
An actual case deals with conflicting rights that are
legally demandable and enforceable. It involves
definite facts and incidents to be appreciated, and
.... laws to be applied, interpreted and enforced vis-à-
vis ascertained facts. It must be "definite and
concrete, touching the legal relations of parties
Even the expanded jurisdiction of this Court under having adverse legal interest; a real and substantial
Article VIII, Section 1 does not provide license to controversy admitting of specific relief."211
provide advisory opinions. An advisory opinion is
one where the factual setting is conjectural or
hypothetical. In such cases, the conflict will not A constitutional question may not be presented to
have sufficient concreteness or adversariness so as this Court at an inopportune time. When it is
to constrain the discretion of this Court. After all, premature, this Court's ruling shall be relegated as
legal arguments from concretely lived facts are an advisory opinion for a potential, future
chosen narrowly by the parties. Those who bring occurrence. When belated, concerning matters that
theoretical cases will have no such limits. They can are moot, the decision will no longer affect the
argue up to the level of absurdity. They will bind parties.
the future parties who may have more motives to
choose specific legal arguments. In other words, for
there to be a real conflict between the parties, there
Either way, courts must avoid resolving
must exist actual facts from which courts can
hypothetical problems or academic questions. This
properly determine whether there has been a breach
exercise of judicial restraint ensures that the
of constitutional text.208
judiciary will not encroach on the powers of other
branches of government. As Angara v. Electoral
Commission212 explained:
Thus, whether in its traditional or expanded scope,
the exercise of judicial review requires the
concurrence of these requisites for justiciability:
[T]his power of judicial review is limited to actual
cases and controversies to be exercised after full
opportunity of argument by the parties, and limited
further to the constitutional question raised or the Rome Statute effective March 17, 2019. It made
very lis mota presented. Any attempt at abstraction this declaration with regret and the hope that such
could only lead to dialectics and barren legal departure "is only temporary and that it will re-join
questions and to sterile conclusions of wisdom, the Rome Statute family in the future."218
justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality
to legislative enactments, not only because the This declaration, coming from the International
legislature is presumed to abide by the Constitution Court itself, settles any doubt on whether there are
but also because the judiciary in the determination lingering factual occurrences that may be
of actual cases and controversies must reflect the adjudicated. No longer is there an unsettled
wisdom and justice of the people as expressed incident demanding resolution. Any discussion on
through their representatives in the executive and the Philippines' withdrawal is, at this juncture,
legislative departments of the government.213 merely a matter of theory.

The requirement of a bona fide controversy However, even prior to the filing of these
precludes advisory opinions and judicial Petitions,219 the President had already completed
legislation. For this Court, "only constitutional the irreversible act of withdrawing from the Rome
issues that are narrowly framed, sufficient to Statute.
resolve an actual case, may be entertained,"214 and
only when they are raised at the opportune time.
To reiterate, Article 127(1) of the Rome Statute
provides the mechanism on how its state parties
A case is moot when it "ceases to present a may withdraw:
justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no
practical use or value."215 There may have been
A State Party may, by written notification
conflicting rights, disputed facts, or meritorious
addressed to the Secretary-General of the United
claims warranting this Court's intervention, but a
Nations, withdraw from this Statute. The
supervening event rendered the issue stale. In
withdrawal shall take effect one year after the date
Peñafrancia Sugar Mill, Inc. v. Sugar Regulatory
of receipt of the notification, unless the notification
Administration:216
specifies a later date.

A case or issue is considered moot and academic

The Philippines announced its withdrawal from the
when it ceases to present a justiciable controversy
Rome Statute on March 15, 2018, and formally
by virtue of supervening events, so that an
submitted its Notice of Withdrawal through a Note
adjudication of the case or a declaration on the
Verbale to the United Nations Secretary-General's
issue would be of no practical value or use. In such
Chef de Cabinet on March 16, 2018. The
instance, there is no actual substantial relief which
Secretary-General received the notification on
a petitioner would be entitled to, and which would
March 17, 2018. For all intents and purposes, and
be negated by the dismissal of the petition. Courts
in keeping with what the Rome Statute plainly
generally decline jurisdiction over such case or
requires, the Philippines had, by then, completed
dismiss it on the ground of mootness. This is
all the requisite acts of withdrawal. The Philippines
because the judgment will not serve any useful
has done all that were needed to facilitate the
purpose or have any practical legal effect because,
withdrawal. Any subsequent discussion would
in the nature of things, it cannot be enforced.217
pertain to matters that are fait accompli.
(Citations omitted)

On March 20, 2018, the International Criminal

On March 19, 2019, the International Criminal
Court issued a statement on the Philippines' Notice
Court itself, through Mr. O-Gon Kwon, the
of Withdrawal. The United Nations certified that
president of the Assembly of States Parties,
the Philippines deposited the written notification on
announced the Philippines' departure from the
March 17, 2018. It stressed that while withdrawal
from the Rome Statute is a sovereign decision, it withdrawal. Having been consummated, these
has no impact on any pending proceedings.220 In actions bind the Philippines.
any case, the International Criminal Court
expressed no reservation on the efficacy of the
withdrawal. In G.R. No. 238875, petitioners posit:

At that point, this Court's interference and ruling on If the Executive can unilaterally withdraw from any
what course of action to take would mean an treaty or international agreement, he is in a position
imposition of its will not only on the executive, but to abrogate some of the basic norms in our legal
also on the International Criminal Court itself. That system. Thus, the Executive can unilaterally
is not the function of this Court, which takes on a withdraw from the International Covenant on Civil
passive role in resolving actual controversies when and Political Rights, the Geneva Conventions[,]
proper parties raise them at an opportune time. In and the United Nations Convention on the Law of
the international arena, it is the president that has the Sea, without any checking mechanism from
the authority to conduct foreign relations and Congress. This would be an undemocratic
represent the country. This Court cannot encroach concentration of power in the Executive that could
on matters beyond its jurisdiction. not have been contemplated by the
Constitution.221

Moreover, while its text provides a mechanism on

how to withdraw from it, the Rome Statute does We reiterate that courts may only rule on an actual
not have any proviso on the reversal of a state case. This Court has no jurisdiction to rule on
party's withdrawal. We fail to see how this Court matters that are abstract, hypothetical, or merely
can revoke—as what petitioners are in effect asking potential. Petitioners' fear that the President may
us to do—the country's withdrawal from the Rome unilaterally withdraw from other treaties has not
Statute, without writing new terms into the Rome transpired and cannot be taken cognizance of by
Statute. this Court in this case. We have the duty to
determine when we should stay our hand, and
refuse to rule on cases where the issues are
Petitioners harp on the withdrawal's effectivity, speculative and theoretical, and consequently, not
which was one year from the United Nations justiciable.222
Secretary-General's receipt of the notification.
However, this one-year period only pertains to the
effectivity, or when exactly the legal consequences Legislative and executive powers impel the
of the withdrawal takes effect. It neither concerns concerned branches of government into assuming a
approval nor finality of the withdrawal. more proactive role in our constitutional order.
Parenthetically, this one-year period does not Judicial power, on the other hand, limits this Court
undermine or diminish the International Criminal into taking a passive stance. Such is the
Court's jurisdiction and power to continue a probe consequence of separation of powers. Until an
that it has commenced while a state was a party to actual case is brought before us by the proper
the Rome Statute. parties at the opportune time, where the
constitutional question is the very lis mota, we
cannot act on an issue, no matter how much it
Here, the withdrawal has been communicated and agonizes us.
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 XII
Statute has been properly received and
acknowledged by the United Nations Secretary-
General, and has taken effect. These are all that the
Parties have standing if they stand to be benefited if
Rome Statute entails, and these are all that the
the case is resolved in their favor, or if they shall
international community would require for a valid
suffer should the case be decided against them.223
 about the question involved." Whether a suit is
public or private, the parties must have "a present
In Falcis III v. Civil Registrar General,224 this substantial interest," not a "mere expectancy or a
Court explained: future, contingent, subordinate, or consequential
interest." Those who bring the suit must possess
their own right to the relief sought. . . .
Much like the requirement of an actual case or
controversy, legal standing ensures that a party is
seeking a concrete outcome or relief that may be Even for exceptional suits filed by taxpayers,
granted by courts: legislators, or concerned citizens, this Court has
noted that the party must claim some kind of
injury-in-fact.225 (Citations omitted)
Legal standing or locus standi is the "right of
appearance in a court of justice on a given
question." To possess legal standing, parties must In G.R. No. 238875, petitioners-senators were then
show "a personal and substantial interest in the case incumbent minority senators who allege that the
such that [they have] sustained or will sustain Senate's constitutional prerogative to concur in the
direct injury as a result of the governmental act that government's decision to withdraw from the Rome
is being challenged." The requirement of direct Statute has been impaired. They add that they were
injury guarantees that the party who brings suit has likewise suing as citizens, as this case allegedly
such personal stake in the outcome of the involves a "public right and its object . . . is to
controversy and, in effect, assures "that concrete procure the enforcement of a public duty."226
adverseness which sharpens the presentation of
issues upon which the court depends for
illumination of difficult constitutional questions."
Petitioners-senators also claim that the issue has
transcendental importance, which may potentially
impact constitutional checks and balances, our
The requirements of legal standing and the recently domestic legal system, and the country's relations
discussed actual case and controversy are both with the international community.227
"built on the principle of separation of powers,
sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions
rendered by its co-equal branches of government." In G.R. No. 239483, petitioner Philippine Coalition
In addition, economic reasons justify the rule. for the International Criminal Court and its
Thus: individual members assert that, as Philippine
citizens and as human beings, they have rights to
life and personal security. The withdrawal from the
Rome Statute, they claim, violates their rights to
A lesser but not insignificant reason for screening ample remedies for the protection of their rights,
the standing of persons who desire to litigate "and of their other fundamental rights especially
constitutional issues is economic in character. the right to life."228
Given the sparseness of our resources, the capacity
of courts to render efficient judicial service to our
people is severely limited. For courts to
indiscriminately open their doors to all types of They likewise contend that their Petition is a
suits and suitors is for them to unduly overburden taxpayers' suit, since the executive department
their dockets, and ultimately render themselves spent substantial taxpayer's money in attending
ineffective dispensers of justice. To be sure, this is negotiations and in participating in the drafting of
an evil that clearly confronts our judiciary today. what would be the Rome Statute.229

Standing in private suits requires that actions be In G.R. No. 240954, the Integrated Bar of the
prosecuted or defended m the name of the real Philippines comes to this Court on essentially the
party-in-interest, interest being "material interest or same ground: as a group of concerned citizens, it
an interest in issue to be affected by the decree or invokes its members' right to life and due process
judgment of the case[,] [not just] mere curiosity that may be affected by the withdrawal.
Additionally, it claims that as a body that aims to Moreover, as discussed, petitioner Senator
uphold the rule of law, it has standing to the Pangilinan mentioned during oral arguments that
question whether the withdrawal was proper.230 the Senate has passed 17 resolutions concurring on
different treaties, each of which came with a clause
that specifically required its concurrence for
Jurisprudence has consistently recognized each withdrawal.234 In contrast, no similar clause was
legislator's individual standing and prerogative contained in Senate Resolution No. 546,235
independent of the House of Representatives or the through which the Senate ratified the Rome Statute.
Senate as a collegial body.231 A legislator's Thus, the Senate's inaction itself precludes a source
individual standing and prerogative remains and is from which petitioners-senators could claim a right
not abandoned in this case. However, the precise to require Senate concurrence to withdrawing from
circumstances here subvert the otherwise generally the Rome Statute.
recognized standing which anchors the individual
legislators' capacity to seek relief. Here, the
Senate's inaction makes premature petitioners- Incidentally, in Goldwater, the United States
senators' capacity to seek relief. The Senate's Supreme Court also declined to rule on the
institutional reticence subverts the capacities substance of the case. There, then Senator Barry
otherwise properly accruing to petitioners-senators. Goldwater and other Congress members assailed
then President Carter's unilateral nullification of the
Sino-American Mutual Defense Treaty, claiming
The Senate has refrained from passing a resolution that this should have required Senate concurrence.
indicating that its assent should have been obtained However, Congress had not formally taken a stance
in withdrawing from the Rome Statute. Senate contrary to the president's action through any
Resolution No. 289,232 or the "Resolution resolution. There was a draft Senate resolution, but
Expressing the Sense of the Senate that no vote was taken on it.236 Justice Powell noted:
Termination of, or Withdrawal from, Treaties and
International Agreements Concurred in by the
Senate shall be Valid and Effective Only Upon This Court has recognized that an issue should not
Concurrence by the Senate," has been presented to be decided if it is not ripe for judicial review
but, thus far, never adopted by the Senate. Prudential considerations persuade me that a
dispute between Congress and the President is not
ready for judicial review unless and until each
During the September 4, 2018 oral arguments, branch has taken action asserting its constitutional
petitioner Senator Pangilinan himself manifested authority. Differences between the President and
the resolution's pendency, which he claimed was the Congress are commonplace under our system.
"not rejected . . . but was not calendared for The differences should, and almost invariably do,
adoption."233 Thus, Senate Resolution No. 289 has turn on political, rather than legal, considerations.
absolutely no legal effect. Such reticence on this The Judicial Branch should not decide issues
matter means that, as a collegial body, and in its affecting the allocation of power between the
wisdom, the Senate has chosen not to assert any President and Congress until the political branches
right or prerogative which it may feel pertains to it, reach a constitutional impasse. Otherwise, we
if any, to limit, balance, or otherwise inhibit the would encourage small groups, or even individual
President's act. Members, of Congress to seek judicial resolution of
issues before the normal political process has the
opportunity to resolve the conflict.
The passage of Resolution No. 289 would have
been a definite basis on which petitioners-senators
can claim a right. However, the Senate itself In this case, a few Members of Congress claim that
appears to have not seen the need for it. Thus, the President's action in terminating the treaty with
petitioners-senators cannot validly come to this Taiwan has deprived them of their constitutional
Court with a case that is already foreclosed by their role with respect to a change in the supreme law of
own institution's inaction. the land. Congress has taken no official action. In
the present posture of this case, we do not know
whether there ever will be an actual confrontation
between the Legislative and Executive Branches.
Although the Senate has considered a resolution Parties must possess their own right to the relief
declaring that Senate approval is necessary for the sought, and a general invocation of citizen's or a
termination of any mutual defense treaty, no final taxpayer's rights is insufficient. This Court must
vote has been taken on the resolution. Moreover, it not indiscriminately open its doors to every person
is unclear whether the resolution would have urging it to take cognizance of a case where they
retroactive effect. It cannot be said that either the have no demonstrable injury. This may ultimately
Senate or the House has rejected the President's render this Court ineffective to dispense justice as
claim. If the Congress chooses not to confront the cases clog its docket.241
President, it is not our task to do so.237 (Emphasis
supplied, citations omitted)
This Court has also recognized that an association
may file petitions on behalf of its members on the
Similarly, this Court should stay its hand when the basis of third party standing. However, to do so, the
Senate itself, as a collegial body, has not officially association must meet the following requirements:
confronted the President's act. This is in keeping (1) "the [party bringing suit] must have suffered an
with the limits of judicial review. 'injury-in-fact,' thus giving [it] a 'sufficiently
concrete interest" in the outcome of the issue in
dispute"; (2) "the party must have a close relation
On the other hand, persons invoking their rights as to the third party"; and (3) "there must exist some
citizens must satisfy the following requisites to file hindrance to the third party's ability to protect his
a suit: (1) they must have "personally suffered or her own interests."242
some actual or threatened injury as a result of the
allegedly illegal conduct of government"; (2) "the
injury is fairly traceable to the challenged action"; In Pharmaceutical and Health Care Association of
and (3) "the injury is likely to be redressed by a the Philippines v. Secretary of Health,243 this
favorable action."238 Court found that an association "has the legal
personality to represent its members because the
results of the case will affect their vital
In G.R. Nos. 239483 and 240954, what petitioners interests":244
assail is an act of the President, in the exercise of
his executive power. They failed to show the actual
or imminent injury that they sustained as a result of The modern view. . . . fuses the legal identity of an
the President's withdrawal from the Rome Statute. association with that of its members. An
Again, "whether a suit is public or private, the association has standing to file suit for its workers
parties must have 'a present substantial interest,' not despite its lack of direct interest if its members are
a 'mere expectancy or a future, contingent, affected by the action. An organization has
subordinate, or consequential interest."'239 standing to assert the concerns of its constituents.

Similarly, petitioners have no standing as ....

taxpayers. In cases involving expenditure of public
funds, also known as a taxpayer's suit, "there must
be a claim of illegal disbursement of public funds We note that, under its Articles of Incorporation,
or that the tax measure is unconstitutional[.]"240 the respondent was organized ... to act as the
representative of any individual, company, entity or
association on matters related to the manpower
Petitioners here failed to show any illegal recruitment industry, and to perform other acts and
expenditure of public funds. To allow these activities necessary to accomplish the purposes
petitioners who suffer no injury to invoke this embodied therein. The respondent is, thus, the
Court's discretion would be to allow everyone to appropriate party to assert the rights of its
come to courts on the flimsiest of grounds. members, because it and its members are in every
practical sense identical. . . The respondent
[association] is but the medium through which its
individual members seek to make more effective
the expression of their voices and the redress of the members so long as they are sufficiently
their grievances.245 numerous and representative of the class to which
they belong.

In Provincial Bus Operators Association of the

Philippines,246 this Court did not allow the In some circumstances similar to those in White
association of bus operators to represent its Light, the third parties represented by the petitioner
members. There were no board resolutions or would have special and legitimate reasons why
articles of incorporation presented to show that it they may not bring the action themselves.
was authorized to file the petition on the members' Understandably, the cost to patrons in the White
behalf. Some of the associations even had their Light case to bring the action themselves—i.e., the
certificates of incorporation revoked. This Court amount they would pay for the lease of the motels
ruled that it is insufficient to simply allege that the —will be too small compared with the cost of the
petitioners are associations that represent their suit. But viewed in another way, whoever among
members who will be directly injured by the the patrons files the case even for its transcendental
implementation of a law: interest endows benefits on a substantial number of
interested parties without recovering their costs.
This is the free rider problem in economics. It is a
The associations in Pharmaceutical and Health negative externality which operates as a
Care Association of the Philippines, Holy Spirit disincentive to sue and assert a transcendental
Homeowners Association, Inc., and The Executive right.247 (Citation omitted, emphasis supplied)
Secretary were allowed to sue on behalf of their
members because they sufficiently established who
their members were, that their members authorized Here, both petitioners-associations, the Integrated
the associations to sue on their behalf, and that the Bar of the Philippines and the Philippine Coalition
members would be directly injured by the for the International Criminal Court, failed to
challenged governmental acts. convince this Court why they must be heard as
associations. Advocating human rights as an
institution is insufficient. No special reason was
The liberality of this Court to grant standing for alleged, let alone proved, why its allegedly injured
associations or corporations whose members are members may not file the case themselves.
those who suffer direct and substantial injury
depends on a few factors.
Worse, the members of the Philippine Coalition for
the International Criminal Court joined the case as
In all these cases, there must be an actual petitioners, albeit likewise failing to exhibit actual
controversy. Furthermore, there should also be a or imminent injury from which they stand to suffer.
clear and convincing demonstration of special
reasons why the truly injured parties may not be
able to sue. XIII

Alternatively, there must be a similarly clear and Transcendental importance is often invoked in
convincing demonstration that the representation of instances when the petitioners fail to establish
the association is more efficient for the petitioners standing in accordance with customary
to bring. They must further show that it is more requirements. However, its general invocation
efficient for this Court to hear only one voice from cannot negate the requirement of locus standi.
the association. In other words, the association Facts must be undisputed, only legal issues must be
should show special reasons for bringing the action present: and proper and sufficient justifications
themselves rather than as a class suit, allowed when why this Court should not simply stay its hand
the subject matter of the controversy is one of must be clear.
common or general interest to many persons. In a
class suit, a number of the members of the class are
permitted to sue and to defend for the benefit of all Falcis explained:
 enabling this Court to act in keeping with its
capabilities. Matters of policy are properly left to
Diocese of Bacolod recognized transcendental government organs that are better equipped at
importance as an exception to the doctrine of framing them. Justiciability demands that issues
hierarchy of courts. In cases of transcendental and judicial pronouncements be properly framed in
importance, imminent and clear threats to relation to established facts:
constitutional rights warrant a direct resort to this
Court. This was clarified in Gios-Samar. There,
this Court emphasized that transcendental
importance — originally cited to relax rules on Angara v. Electoral Commission imbues these rules
legal standing and not as an exception to the with its libertarian character. Principally, Angara
doctrine of hierarchy of courts — applies only to emphasized the liberal deference to another
cases with purely legal issues. We explained that constitutional department or organ given the
the decisive factor in whether this Court should majoritarian and representative character of the
permit the invocation of transcendental importance political deliberations in their forums. It is not
is not merely the presence of "special and merely a judicial stance dictated by courtesy, but is
important reason[,]" but the nature of the question rooted on the very nature of this Court. Unless
presented by the parties. This Court declared that congealed in constitutional or statutory text and
there must be no disputed facts, and the issues imperatively called for by the actual and non-
raised should only be questions of law: controversial facts of the case, this Court does not
express policy. This Court should channel
democratic deliberation where it should take place.

[W]hen a question before the Court involves

determination of a factual issue indispensable to the
resolution of the legal issue, the Court will refuse ....
to resolve the question regardless of the allegation
or invocation of compelling reasons, such as the
transcendental or paramount importance of the Judicial restraint is also founded on a policy of
case. Such question must first be brought before the conscious and deliberate caution. This Court should
proper trial courts or the CA, both of which are refrain from speculating on the facts of a case and
specially equipped to try and resolve factual should allow parties to shape their case instead.
questions. Likewise, this Court should avoid projecting
hypothetica.l situations where none of the parties
can fully argue simply because they have not
Still, it does not follow that this Court should established the facts or are not interested in the
proceed to exercise its power of judicial review just issues raised by the hypothetical situations. In a
because a case is attended with purely legal issues. way, courts are mandated to adopt an attitude of
Jurisdiction ought to be distinguished from judicial skepticism. What we think may be
justiciability. Jurisdiction pertains to competence happening may not at all be the case. Therefore,
"to hear, try[,] and decide a case." On the other this Court should always await the proper case to
hand, be properly pleaded and proved.

[d]etermining whether the case, or any of the issues Thus, concerning the extent to which
raised, is justiciable is an exercise of the power transcendental importance carves exceptions to the
granted to a court with jurisdiction over a case that requirements of justiciability, "[t]he elements
involves constitutional adjudication. Thus, even if supported by the facts of an actual case, and the
this Court has jurisdiction, the canons of imperatives of our role as the Supreme Court
constitutional adjudication in our jurisdiction allow within a specific cultural or historic context, must
us to disregard the questions raised at our be made clear":
discretion.

They should be properly pleaded by the petitioner

Appraising justiciability is typified by so that whether there is any transcendental
constitutional avoidance. This remains a matter of importance to a case is made an issue. That a case
has transcendental importance, as applied, may issues excusing requisite standing should not be so
have been too ambiguous and subjective that it recklessly invoked, and is justified only in
undermines the structural relationship that this extraordinary circumstances.
Court has with the sovereign people and other
departments under the Constitution. Our rules on
jurisdiction and our interpretation of what is The alleged transcendental importance of the issues
justiciable, refined with relevant cases, may be raised here will be better served when there are
enough. actual cases with the proper parties suffering an
actual or imminent injury. No injury so great and
so imminent was shown here, such that this Court
Otherwise, this Court would cede unfettered cannot instead adjudicate on the occasion of an
prerogative on parties. It would enable the parties appropriate case.
to impose their own determination of what issues
are of paramount; national significance, warranting
immediate attention by the highest court of the XIV
land.248 (Emphasis supplied, citations omitted)

The writ of certiorari which may be issued under

Chamber of Real Estate and Builders' Associations, Rule 65 of the Rules of Court must be
Inc. v. Energy Regulatory Commission249 lists the distinguished from the writ of certiorari that may
following considerations to determine whether an be issued pursuant to the "expanded certiorari
issue is of transcendental importance: jurisdiction"252 under Article VIII, Section 1,
paragraph 2 of the 1987 Constitution.253 The latter
is a remedy for breaches of constitutional rights by
(1) the character of the funds or other assets any branch or instrumentality of the government.
involved in the case; (2) the presence of a clear Meanwhile, the special civil action under Rule 65
case of disregard of a constitutional or statutory is limited to a review of judicial and quasi-judicial
prohibition by the public respondent agency or acts. The following summarizes the distinctions
instrumentality of the government; and (3) the lack between the two avenues for certiorari:
of any other party with a more direct and specific
interest in the questions being raised.250 (Citation
omitted) Certiorari under Rule 65 Expanded Certiorari

Basis Rule 65 of the Rules of Court

Here, all petitioners invoked the supposed Article VIII, Section 1, paragraph 2 of the
transcendental importance of the constitutional Constitution
issues. However, none of the exceptional Assailed act without or in excess of
conditions warranting the exercise of this Court's jurisdiction, or with grave abuse of discretion
jurisdiction is present here. This case does not amounting to lack or excess of jurisdiction grave
involve funds or assets. Neither was there any abuse of discretion amounting to lack or excess of
express disregard of a constitutional or statutory jurisdiction
prohibition. Petitioners also failed to show that no
other party has a more direct, personal, and By whom any tribunal, board or officer
material interest. Petitioners failed to invoke any exercising judicial or quasi-judicial functions
source of right to bring these Petitions. any branch or instrumentality of the
government

Other requisites there is no appeal, or any plain,

This Court is competent to decide legal principles speedy, and adequate remedy in the ordinary
only in properly justiciable cases. That a party must course of law
have standing in court is not a mere technical rule
that may easily be waived. Courts should be
scrupulous in protecting the principles of
While these two avenues are distinct, this Court has
justiciability, or else their legitimacy may be
allowed—in view of its power to relax its rules of
undermined.251 Transcendental importance of
procedure—recourse to petitions for certiorari
under Rule 65 to enable reliefs that invoke The petition shall also contain a sworn certification
expanded certiorari jurisdiction.254 of non-forum shopping as provided in the third
paragraph of section 3, Rule 46. (3a)

Regardless, "the expansion of this Court's judicial

power is by no means an abandonment of the need A petition for certiorari under Rule 65 will prosper
to satisfy the basic requisites of justiciability."255 only when the following requisites are present (1)
Ultimately, the nature of judicial power means that the writ "must be directed against a tribunal, a
this Court is competent to decide legal principles board, or officer exercising judicial or quasi-
only when there is an actual case brought by the judicial functions"; (2) "the tribunal, board, or
proper parties who suffer direct, material, and officer must have acted without or in excess of
substantial injury. jurisdiction or with grave abuse of discretion"; and
(3) "there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law."257
XV

Not every instance of abuse of discretion should

The special civil actions of petitions for certiorari lead this Court to exercise its power of judicial
and mandamus cannot afford petitioners the reliefs review. The abuse of discretion must be grave,
they seek. amounting to a lack or excess of jurisdiction. Sinon
v. Civil Service Commission258 explains:

Rule 65 petitions are not per se remedies to resolve

constitutional issues. Instead, they "are filed to By grave abuse of discretion is meant such
address the jurisdictional excesses of officers or capricious and whimsical exercise of judgment as
bodies exercising judicial or quasi-judicial is equivalent to lack of jurisdiction. The abuse of
functions."256 Rule 65, Section 1 of the Rules of discretion must be patent and gross as to amount to
Court provides: an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by
SECTION 1. Petition for certiorari. — When any
reason of passion or hostility.259 (Citation omitted)
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of A writ of certiorari is unavailing here. The assailed
jurisdiction, and there is no appeal, or any plain, government act is the President's withdrawal from
speedy, and adequate remedy in the ordinary the Rome Statute. This, by any stretch of the
course of law, a person aggrieved thereby may file imagination, may not be considered an exercise of
a verified petition in the proper court, alleging the judicial or quasi-judicial power.
facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such A political question exists when the issue does not
incidental reliefs as law and justice may require. call on this Court to determine legality and
adjudicate, but to interpret the wisdom of a law or
an act.260 It has been defined as a question "which,
The petition shall be accompanied by a certified under the Constitution, [is] to be decided by the
true copy of the judgment, order or resolution people in their sovereign capacity, or in regard to
subject thereof, copies of all pleadings and which full discretionary authority has been
documents relevant and pertinent thereto, and a delegated to the Legislature or executive branch of
sworn certification of non-forum shopping as the Government."261
provided in the third paragraph of section 3, Rule
46. (1a)
In Integrated Bar of the Philippines v. Zamora:262
 "dominance in the field of foreign relations is then
conceded." Wielding vast powers and influence, his
One class of cases wherein the Court hesitates to conduct in the external affairs of the nation . . . is
rule on are "political questions." The reason is that "executive altogether."266 (Citations omitted)
political questions are concerned with issues
dependent upon the wisdom not the legality, of a
particular act or measure being assailed. Moreover,
the political question being a function of the Between the executive and this Court, it is the
separation of powers, the courts will not normally executive that represents the Philippines in the
interfere with the workings of another co-equal international sphere. This Court interprets laws hut
branch unless the case shows a clear need for the its determinations are effective only within the
courts to step in to uphold the law and the bounds of Philippine jurisdiction. Even within
Constitution. these bounds, this Court must caution itself in
interpreting the Constitution and our laws, for it
can undermine the discretion of the political
agencies. This Court's mandate is clear: it is the
. . . In the classic formulation of Justice Brennan in presence of grave abuse of discretion that sanctions
Baker v. Carr, prominent on the surface of any case us to act. It is not merely discretion, but abuse of
held to involve a political question is found a that discretion; and it is not only abuse of
textually demonstrable constitutional commitment discretion, but grave abuse of discretion.
of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of The President's withdrawal from the Rome Statute
a kind clearly for nonjudicial discretion; or the was in accordance with the mechanism provided in
impossibility of a court’s undertaking independent the treaty. The Rome Statute itself contemplated
resolution without expressing lack of the respect and enabled a State Party's withdrawal. A state
due coordinate branches of government; or an party and its agents cannot be faulted for merely
unusual need for unquestioning adherence to a acting within what the Rome Statute expressly
political decision already made; or the potentiality allows.
of embarrassment from multifarious
pronouncements by various departments on the one
question.263 (Citation omitted) As far as established facts go, all there is for this
Court to rely on are the manifest actions of the
executive, which have nonetheless all been
Courts cannot resolve a political question. It is not consistent with the letter of the Rome Statute.
within the purview of judicial functions, and must Suggestions have been made about supposed
be left to the sound discretion of the political agents political motivations, but they remain just that:
—the executive or the legislature. suggestions and suppositions.

It is true that we have previously said that it is Were the situation different—where it is shown
wrong to mistake matters of foreign relations as that the President's exercise of discretion ran afoul
political questions, which are completely beyond of established procedure; or was done in manifest
the reach of judicial review. Nevertheless, disregard of previously declared periods for
generally, the pursuit of foreign relations is in the rectification, terms, guidelines, or injunctions,
executive domain, and thus, pertains to the belying any rhyme or reason in the course of action
president,264 the primary architect of foreign hastily and haphazardly taken; or was borne out of
policy. As explained in Bayan v. Zamora:265 vindictiveness, as retaliation, merely out of
personal motives, to please personal tastes or to
placate personal perceived injuries—whimsical and
arbitrary exercise of discretion may be appreciated,
By constitutional fiat and by the intrinsic nature of impelling this Court to rule on the substance of
his office, the President, as head of State, is the sole petitions and grant the reliefs sought.
organ and authority in the external affairs of the
country. In many ways, the President is the chief
architect of the nation's foreign policy, his
XVI only to enforce one that is already established." In
Pefianco v. Moral, this Court underscored that a
writ of mandamus "never issues in doubtful cases."
Rule 65, Section 3 of the Rules of Court provides:

Respondents must also be shown to have actually

SECTION 3. Petition for mandamus. — When any neglected to perform the act mandated by law.
tribunal, corporation, board, officer or person Clear in the text of Rule 65, Section 3 is the
unlawfully neglects the performance of an act requirement that respondents "unlawfully neglect"
which the law specifically enjoins as a duty the performance of a duty. The mere existence of a
resulting from an office, trust, or station, or legally mandated duty or the pendency of its
unlawfully excludes another from the use and performance does not suffice.
enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the The duty subject of mandamus must be ministerial
person aggrieved thereby may tile a verified rather than discretionary. A court cannot subvert
petition in the proper court, alleging the facts with legally vested authority for a body or officer to
certainty and praying that judgment be rendered exercise discretion. In Sy Ha v. Galang:
commanding the respondent, immediately or at
some other time to be specified by the court, to do
the act required to be done to protect the rights of [M]andamus will not issue to control the exercise
the petitioner, and to pay the damages sustained by of discretion of a public officer where the law
the petitioner by reason of the wrongful acts of the imposes upon him the duty to exercise his
respondent. judgment in reference to any matter in which he is
required to act, because it is his judgment that is to
be exercised and not that of the court.
Lihaylihay v. Treasurer of the Philippines267
discussed the requisites for the issuance of a writ of
mandamus: This Court distinguished discretionary functions
from ministerial duties, and related the exercise of
discretion to judicial and quasi-judicial powers. In
A writ of mandamus may issue in either of two (2) Samson v. Barrios:
situations: first, "when any tribunal, corporation,
board, officer or person unlawfully neglects the
performance of an act which the law specifically Discretion, when applied to public functionaries,
enjoins as a duty resulting from an office, trust, or means a power or right conferred upon them by law
station"; second, "when any tribunal, corporation, of acting officially, under certain circumstances,
board, officer or person . . . unlawfully excludes according to the dictates of their own judgments
another from the use and enjoyment of a right or and consciences, uncontrolled by the judgments or
office to which such other is entitled." consciences of others. A purely ministerial act or
duty, in contradistinction to a discretional act, is
one which an officer or tribunal performs in a given
The first situation demands a concurrence between state of facts, in a prescribed manner, in obedience
a clear legal right accruing to petitioner and a to the mandate of legal authority, without regard to
correlative duty incumbent upon respondents to or the exercise of his own judgment, upon the
perform an act, this duty being imposed upon them propriety or impropriety of the act done. If the law
by law. imposes a duty upon a public officer, and gives him
the right to decide how or when the duty shall be
performed, such duty is discretionary and not
Petitioner's legal right must have already been ministerial. The duty is ministerial only when the
clearly established. It cannot be a prospective discharge of the same requires neither the exercise
entitlement that is yet to be settled. In Lim Tay v. of official discretion nor judgment. . . . Mandamus
Court of Appeals, this Court emphasized that will not lie to control the exercise of discretion of
"[m]andamus will not issue to establish a right, but an inferior tribunal . . . , when the act complained
of is either judicial or quasi-judicial. . . . It is the XVII
proper remedy when the case presented is outside
of the exercise of judicial discretion. . . .
Pacta sunt servanda is a generally accepted
principle of international law that preserves the
Mandamus, too, will not issue unless it is shown sanctity of treaties. This principle is expressed in
that "there is no other plain, speedy and adequate Article 26 of the Vienna Convention:
remedy in the ordinary course of law." This is a
requirement basic to all remedies under Rule 65,
i.e., certiorari, prohibition, and mandamus.268 Article 26
(Emphasis supplied, citations omitted)
"Pacta sunt servanda"

A writ of mandamus lies to compel the

performance of duties that are purely ministerial, Every treaty in force is binding upon the parties to
and not those that are discretionary. Petitioners it and must be performed by them in good faith.
must show that they have a clear legal right and
that there was a neglected duty which was
incumbent upon the public officer. A supplementary provision is found in Article 46:

Here, however, there is no showing that the Article 46

President has the ministerial duty imposed by law
to retract his withdrawal from the Rome Statute. Provisions of internal law regarding
Certainly, there is no constitutional or statutory
competence to conclude treaties
provision granting petitioners the right to compel
the executive to withdraw from any treaty. It was
discretionary upon the President, as primary
architect of our foreign policy, to perform the 1. A State may not invoke the fact that its consent
assailed act. to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its
consent unless that violation was manifest and
Moreover, issuing a writ of mandamus will not ipso
concerned a rule of its internal law of fundamental
facto restore the Philippines to membership in the
importance.
International Criminal Court. No provision in the
Rome Statute directs how a state party may reverse
its withdrawal from the treaty. It cannot be
guaranteed that the Note Verbale's depositary, the 2. A violation is manifest if it would be objectively
United Nations Secretary-General, will assent to evident to any State conducting itself in the matter
this Court's compulsion to reverse the country's in accordance with normal practice and in good
withdrawal. faith.

This Court is not an international court. It may only A state party may not invoke the provisions of its
rule on the effect of international law on the internal law to justify its failure to perform a treaty.
domestic sphere. What is within its purview is not Under international law, we cannot plead our own
the effectivity of laws among states, but the effect laws to excuse our noncompliance with our
of international law on the Constitution and our obligations.
municipal laws. Not only do petitioners pray for a
relief directed at a discretionary function, but the
relief they seek through this Court's finite authority The March 15, 2018 Note Verbale submitted by the
is ineffectual and futile. Ultimately, mandamus will Department of Foreign Affairs, through our
not lie. Ambassador to the United Nations, partly reads:
The Government of the Republic of the Philippines From its text, the Rome Statute provides no room
has the honor to inform the Secretary-General, in to reverse the accepted withdrawal from it. While
his capacity as depositary of the Rome Statute of there is a one-year period before the withdrawal
the International Criminal Court, of its decision to takes effect, it is unclear whether we can read into
withdraw from the Rome Statute of the that proviso a permission for a state party to rethink
International Criminal Court in accordance with the its position, and retreat from its withdrawal.
relevant provisions of the Statute.

In any case, this Court has no competence to

The Philippines assures the community of nations interpret with finality—let alone bind the
that the Philippine Government continues to be International Criminal Court, the Assembly of
guided by the rule of law embodied in its States Parties, individual state parties, and the
Constitution, which also enshrines the country's entire international community—what this
long-standing tradition of upholding human rights. provision means, and conclude that undoing a
withdrawal is viable. In the face of how the Rome
Statute enables withdrawal but does not
The Government affirms its commitment to fight contemplate the undoing of a withdrawal, this
against impunity for atrocity crimes, Court cannot compel external recognition of any
notwithstanding its withdrawal from the Rome prospective undoing which it shall order. To do so
Statute, especially since the Philippines has a could even mean courting international
national legislation punishing atrocity crimes. The embarrassment.
Government remains resolute in effecting its
principal responsibility to ensure the long-term
safety of the nation in order to promote inclusive Just the same, any such potential embarrassment or
national development and secure a decent and other unpalatable consequences arc risks that we,
dignified life for all. as a country, are willing to take is better left to
those tasked with crafting foreign policy.

The decision to withdraw is the Philippines'

principled stand against those who politicize and The Rome Statute contemplates amendments, and
weaponize human rights, even as its independent is replete with provisions on it:
and well-functioning organs and agencies continue
to exercise jurisdiction over complaints, issues,
problems and concerns arising from its efforts to Article 121
protect its people.269 (Emphasis supplied)
Amendments

The Philippines' withdrawal was submitted in

accordance with relevant provisions of the Rome
Statute. The President complied with the provisions
1. After the expiry of seven years from the entry
of the treaty from which the country withdrew.
into force of this Statute, any State Party may
There cannot be a violation of pacta sunt servanda
propose amendments thereto. The text of any
when the executive acted precisely in accordance
proposed amendment shall be submitted to the
with the procedure laid out by that treaty. Article
Secretary-General of the United Nations, who shall
127(1) of the Rome Statute states:
promptly circulate it to all States Parties.

1. A State Party may, by written notification

2. No sooner than three months from the date of
addressed to the Secretary-General of the United
notification, the Assembly of States Parties, at its
Nations, withdraw from this Statute. The
next meeting, shall, by a majority of those present
withdrawal shall take effect one year after the date
and voting, decide whether to take up the proposal.
of receipt of the notification, unless the notification
The Assembly may deal with the proposal directly
specifies a later date.
or convene a Review Conference if the issue article 38, article 39, paragraphs 1 (first two
involved so warrants. sentences), 2 and 4, article 42, paragraphs 4 to 9,
article 43, paragraphs 2 and 3, and articles 44, 46,
47 and 49, may be proposed at any time,
3. The adoption of an amendment at a meeting of notwithstanding article 121, paragraph 1, by any
the Assembly of States Parties or at a Review State Party. The text of any proposed amendment
Conference which consensus cannot be reached shall be submitted to the Secretary-General of the
shall require a two-thirds majority States Parties. United Nations or such other person designated by
the Assembly of States Parties who shall promptly
circulate it to all States Parties and to others
participating in the Assembly.
4. Except as provided in paragraph 5, an
amendment shall enter into force for all States
Parties one year after instruments of ratification or
acceptance have been deposited with the Secretary- 2. Amendments under this article in which
General of the United Nations by seven-eighths of consensus cannot be reached shall be adopted by
them. the Assembly of States Parties or by a Review
Conference, by a two-thirds majority of States
Parties. Such amendments shall enter into force for
all States Parties six months after their adoption by
5. Any amendment to Articles 5, 6, 7 and 8 of this
the Assembly of, as the case may be, by the
Statute shall enter into force for those States Parties
Conference.
which have accepted the amendment one year after
the deposit of their instruments of ratification or
acceptance. In respect of a State Party which has
not accepted the amendment, the Court shall not Article 123
exercise its jurisdiction regarding a crime covered Review of Statute
by the amendment when committed by that State
Party's nationals or on its territory.

1. Seven years after the entry into force of this

Statute the Secretary-General of the United Nations
6. If an amendment has been accepted by seven- shall convene a Review Conference to consider any
eighths of States Parties in accordance with amendments to this Statute. Such review may
paragraph 4, any State Party which has not include, but is not limited to, the list of crimes
accepted the amendment may withdraw from this contained in article 5. The Conference shall be
Statute with immediate effect, notwithstanding open to those participating in the Assembly of State
article 127, paragraph 1, but subject to article 127, Parties and on the same conditions.
paragraph 2, by giving notice no later than one year
after the entry into force of such amendment.

2. At any time thereafter, at the request of a State

Party and for the purposes set out in paragraph 1,
7. The Secretary-General of the United Nations the Secretary-General of the United Nations shall,
shall circulate to all States Parties any amendment upon approval by a majority of States Parties,
adopted at a meeting of the Assembly of States convene a Review Conference.
Parties or at a Review Conference.

3. The provisions of article 121, paragraphs 3 to 7,

Article 122 shall apply to the adoption and entry into force of
Amendments to provisions of an institutional any amendment to the Statute considered in a
nature Review Conference.

1. Amendments to provisions of this Statute which Generally, jus cogens rules of customary
are of an exclusively institutional nature, namely, international law cannot be amended by treaties. As
article 35, article 36, paragraphs 8 and 9, article 37, Articles 121, 122, and 123 allow the amendment of
provisions of the Rome Statute, this indicates that which is consistent with the Constitution. This is a
the Rome Statute is not jus cogens. At best, its basic requirement of the principle of legality and
provisions are articulations of customary law, or the rule of law. The absence of a provision in the
simply, treaty law. Article 121(6) sanctions the Constitution or any other legislation of a power for
immediate withdrawal of a state party if it does not the executive to terminate international agreements
agree with the amending provisions of the Rome is therefore confirmation of the fact that such
Statute. Therefore, withdrawal from the Rome power does not exist unless and until parliament
Statute is not aberrant. Precisely, the option is legislates for it. It is not a lacuna or omission.270
enabled for states parties.

The ruling on South Africa's withdrawal cannot be

Petitioners' contention—that withdrawing from the taken as binding precedent.
Rome Statute effectively repeals a law—is
inaccurate. The Rome Statute remained in force for
its states parties, and Article 127 specifically First, foreign judgments are not binding in our
allows state parties to withdraw. jurisdiction. At most, they may hold persuasive
value.271 Francisco v. House of
Representatives272 teaches that this Court, in
In withdrawing from the Rome Statute, the passing upon constitutional questions, "should not
President complied with the treaty's requirements. be beguiled by foreign jurisprudence some of
Compliance with its textual provisions cannot be which are hardly applicable because they have been
susceptible of an interpretation that his act violated dictated by different constitutional settings and
the treaty. Hence, withdrawal per se from the Rome needs."273
Statute does not violate pacta sunt servanda.

Second, a comparison of the Philippines' and South

XVIII Africa's respective governmental structures and
constitutions reveals stark differences.

Petitioners in G.R. No. 239483 invoke the case of

South Africa, which had previously attempted to Our Constitution states: "No treaty or international
withdraw from the Rome Statute. When the agreement shall be valid and effective unless
withdrawal was challenged by the South African concurred in by at least two-thirds of all the
Opposition Democratic Alliance, the South African members of the Senate."274
High Court ruled that the president's withdrawal
was premature, procedurally irrational, and may
not be done without the approval of the Parliament. On the other hand, the South African Constitution
It said: provides:

The matter was argued largely on the basis that SECTION 231. International Agreements
there is no provision in the Constitution or in any
other legislation for withdrawal from international
treaties. . . . However, it appears to us that there is
(1) The negotiating and signing of all international
probably a good reason why the Constitution
agreements is the responsibility of the national
provides for the power of the executive to negotiate
executive
and conclude international agreements but is silent
on the power to terminate them. The reason is this:
As the executing arm of the state, the national
executive needs authority to act. That authority will
flow from the Constitution or from an act of
parliament. The national executive can exercise
only those powers and perform those functions
conferred upon it by the Constitution, or by law
(2) An international agreement binds the Republic cooperation with the Court in connection with
only after it has been approved by resolution in criminal investigations and proceedings in relation
both the National Assembly and the National to which the withdrawing State had a duty to
Council of Provinces, unless it is an agreement cooperate and which were commenced prior to the
referred to in subsection (3).275 (Emphasis date on which the withdrawal became effective, nor
supplied) shall it prejudice in any way the continued
consideration of any matter which was already
under consideration by the Court prior to the date
Our Constitution requires that when the president on which the withdrawal became effective.
enters into a treaty, at least two-thirds of all (Emphasis supplied)
members of the Senate must concur for it to be
valid and effective. On the other hand, the South
African Constitution expressly requires that the A state party withdrawing from the Rome Statute
entire parliament must approve the international must still comply with this provision. Even if it has
agreement. deposited the instrument of withdrawal, it shall not
be discharged from any criminal proceedings.
Whatever process was already initiated before the
Per our system of checks and balances, the Senate International Criminal Court obliges the state party
concurred with entering into the Rome Statute to cooperate.
through Senate Resolution No. 546. In contrast, the
South African parliament had to enact a law, the
Implementation of the Rome Statute of the Until the withdrawal took effect on March 17,
International Criminal Court Act 27 of 2002,276 2019, the Philippines was committed to meet its
for the Rome Statute to be adopted in South Africa. obligations under the Rome Statute. Any and all
Thus, treaty-making in South Africa is vested in governmental acts up to March 17, 2019 may be
their parliament, making it a concurrently taken cognizance of by the International Criminal
legislative and not an exclusively executive act. In Court.
the Philippines, treaty-making is an executive act,
vested in the president; the Senate's involvement is
limited to mere concurrence. Further, as petitioners in G.R. No. 239483
underscored:

While there may be similarities between our

constitutions, these are not enough to take South [U]nder this reverse complementarity provision in
Africa's case as binding precedent. We are under a [Republic Act No. 9851, the Preliminary
presidential form of government. The way our Examination opened by the [International Criminal
system of checks and balances operates is different Court] on the President's drug war is not exactly
from how such a system would operate m a haram (to borrow a word used in Islam to mean any
parliamentary government. act forbidden by the Divine). Assuming such a
[Preliminary Examination] proceeds . . . when Art.
18 (3) of the Rome Statute comes into play,
XIX [Republic Ad No. 9851 may be invoked as basis by
Philippine authorities to defer instead to the
[International Criminal Court] in respect of any
Withdrawing from the Rome Statute does not investigation on the .same situation.277
discharge a state party from the obligations it has
incurred as a member. Article 127(2) provides:
Consequently, liability for the alleged summary
killings and other atrocities committed in the
A State shall not be discharged, by reason of its course of the war on drugs is not nullified or
withdrawal, from the obligations arising from this negated here. The Philippines remained covered
Statute while it was as a Party to the Statute, and bound by the Rome Statute until March 17,
including any financial obligations which may have 2019.
accrued. Its withdrawal shall not affect any
XX SECTION 17. Jurisdiction. — The State shall
exercise jurisdiction over persons, whether military
or civilian, suspected or accused of a crime defined
Petitioners claim that the country's withdrawal and penalized in this Act, regardless of where the
from the Rome Statute violated their right to be crime is committed, provided, any one of the
provided with ample remedies for the protection of following conditions is met:
their right to life and security.

(a) The accused is a Filipino citizen;

This fear of imagined diminution of legal remedies
must be assuaged. The Constitution, which
embodies our fundamental rights, was in no way (b) The accused, regardless of citizenship or
abrogated by the withdrawal. A litany of statutes residence, is present in the Philippines; or
that protect our rights remain in place and
enforceable.
(c) The accused has committed the said crime
against a Filipino citizen.
As discussed, Republic Act No. 9851 or the
Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes In the interest of justice, the relevant Philippine
Against Humanity, echoes the substantive authorities may dispense with the investigation or
provisions of the Rome Statue. It was signed into prosecution of a crime punishable under this Act if
law on December 11, 2009, two years before the another court or international tribunal is already
Senate concurred with the Rome Statute. Republic conducting the investigation or undertaking the
Act No. 9851 covers rights similarly protected prosecution of such crime. Instead, the authorities
under the Rome Statute. Consequently, no new may surrender or extradite suspected or accused
obligations arose from our membership in the persons in the Philippines to the appropriate
International Criminal Court. Given the variances international court, if any, or to another State
between the Rome Statute and Republic Act No. pursuant to the applicable extradition laws and
9851, it may even be said that the Rome Statute treaties.
amended Republic Act No. 9851.

No criminal proceedings shall be initiated against

Republic Act No. 9851 declares the State policy of foreign nationals suspected or accused of having
valuing "the dignity of every human person and committed the crimes defined and penalized in this
guarantee[ing] full respect for human rights, Act if they have been tried by a competent court
including the rights of indigenous cultural outside the Philippines in respect of the same
communities and other vulnerable groups, such as offense and acquitted, or having been convicted,
women and children[.]"278 It guarantees protection already served their sentence.281
against "the most serious crimes of concern to the
international community as a whole . . . and their
effective prosecution must be ensured by taking
Republic Act No. 9851 expressly confers original
measures at the national level in order to put an end
and exclusive jurisdiction on regional trial courts
to impunity for the perpetrators of these
over the offenses it punishes. It also provides that
crime[.]279 It recognizes that the State must
this Court shall designate special courts to try these
"exercise its criminal jurisdiction over those
cases.282 Unlike the Rome Statute, Republic Act
responsible for international crimes[.]"280
No. 9851 dispenses with complementarity as a
requirement for prosecution of crimes against
humanity.
This is enforced by the Republic Act No. 9851's
assertion of jurisdiction over crimes committed
anywhere in the world:
Notably, Republic Act No. 9851 proclaims as state
policy the protection of human rights of the
accused, the victims, and the witnesses, and
provides for accessible and gender-sensitive
avenues of redress:
(c) Where the personal interests of the victims are
affected, the court shall permit their views and
concerns to be presented and considered at stages
The State shall guarantee persons suspected or of the proceedings determined to be appropriate by
accused of having committed grave crimes under the court in manner which is not prejudicial to or
international law all rights necessary to ensure that inconsistent with the rights of the accused and a
their trial will he fair and prompt in strict fair and impartial trial. Such views and concerns
accordance with national and international law and may be presented by the legal representatives of the
standards for fair trial, It shall also protect victims, victims where the court considers it appropriate in
witnesses and their families, and provide accordance with the established rules of procedure
appropriate redress to victims and their families.. It and evidence; and
shall ensure that the legal systems in place provide
accessible and gender-sensitive avenues of redress
for victims of armed conflict[.]283
(d) Where the disclosure of evidence or
information pursuant to this Act may lead to the
grave endangerment of the security of a witness for
These State policies are operationalized in the his/her family, the prosecution may, for the
following provisions: purposes of any proceedings conducted prior to the
commencement of the trial; withhold such evidence
or information and instead submit a summary
SECTION 13. Protection of Victims and thereof. Such measures shall be exercised in a
Witnesses. – In addition to existing provisions in manner which is not prejudicial to or inconsistent
Philippine law for the protection of victims and with the rights of the accused and to a fair and
witnesses, the following measures shall be impartial trial.
undertaken:

SECTION 14. Reparations to Victims. – In

(a) The Philippine court shall take appropriate addition to existing provisions in Philippine law
measures to protect the safety, physical and and procedural rules for reparations to victims, the
physiological well-being, dignity and privacy of following measures shall be undertaken:
victims and witnesses. In so doing, the court shall
have regard of all relevant factors, including age,
gender and health, and the nature of the crime, in (a) The court shall follow the principles relating to
particular, but not limited to, where the crime the reparations to, or in respect of, victims,
involves sexual or gender violence or violence including restitution, compensation and
against children. The prosecutor shall take such rehabilitation. On this basis, in its decision, the
measures particularly during the investigation and court may, wither upon request or on its own
prosecution of such crimes. These measures shall motion in exceptional circumstances, determine the
not be prejudicial to or inconsistent with the rights scope and extent of any damage, loss and injury to,
of the accused and to a fair and impartial trial; or in respect of, victims and state the principles on
which it is acting:

(b) As an exception to the general principle of

public hearings, the court may, to protect the (b) The court may make an order directly against a
victims and witnesses or an accused, conduct any convicted person specifying appropriate reparations
part of the proceedings in camera or allow the to, or in respect of, victims, including restitution,
presentation of evidence by electronic or other compensation and rehabilitation; and
special means. In particular, such measures shall be
implemented in the case of the victim of sexual
violence or a child who is a victim or is a witness,
unless otherwise ordered by the court, having (c) Before making an order under this section, the
regard to all the circumstances, particularly the court may invite and shall take account of
views of the victim or witness; representations from or on behalf of the convicted
person, victims or other interested persons.
 persons or property protected under the provisions
of the relevant Geneva Convention:
Nothing in this section shall be interpreted as
prejudicing the rights of victims under national or
international law.284
....

Chapter III285 of Republic Act No. 9851 defines

war crimes, genocide, and other crimes against (6) Arbitrary deportation or forcible transfer of
humanity, as similarly characterized in the Rome population or unlawful confinement;
Statute.

(7) Taking of hostages;

However, there are significant differences between
the Rome Statute and Republic Act No. 9851.
(8) Compelling a prisoner of war or other protected
person to serve in the forces of a hostile power; and
Republic Act No. 9851 defines torture as "the
intentional infliction of severe pain or suffering,
whether physical, mental, or psychological, upon a (9) Unjustifiable delay in the repatriation of
person in the custody or under the control of the prisoners of war or other protected persons.
accused; except that torture shall not include pain
or suffering arising only from, inherent in or
incidental to, lawful sanctions."286 Meanwhile, (b) In case of a non-international armed conflict,
psychological means of torture are not covered by serious violations of common Article 3 to the four
the Rome Statute. This is also a departure from (4) Geneva Conventions of 12 August 1949,
Republic Act No. 9745, or the Anti-Torture Act of namely, any of the following acts committed
2009, which limits torture to those "inflicted by or against persons taking no active part in the
at the instigation of or with the consent or hostilities, including members of the armed forces
acquiescence of a person in authority or agent of a who have laid down their arms and those placed
person in authority"287 for specific purposes. hors de combat by sickness, wounds, detention or
any other cause:

Republic Act No. 9851 clustered war crimes or

crimes against international humanitarian law into (1) Violence to life and person, in particular,
three categories: (1) an international armed willful killings, mutilation, cruel treatment and
conflict; (2) a non-international armed conflict; and torture;
(3) other serious violations of laws and customs
applicable in armed conflict. It then listed specific
acts against protected persons or properties, or
....
against persons taking no active part in hostilities.
The broader definition of war crimes under
Republic Act No. 9851 as compared with the Rome
Statute is emphasized below: (3) Intentionally directing attacks against buildings,
material, medical units and transport, and personnel
using the distinctive emblems of the Geneva
Conventions or Additional Protocol III in
SECTION 4. War Crimes. —- For the purpose of
conformity with international law;
this Act, "war crimes" or "crimes against
International Humanitarian Law" means:

....
(a) In case of an international armed conflict, grave
breaches of the Geneva Conventions of 12 August
1949, namely, any of the following acts against
(6) Launching an attack against works or
installations containing dangerous forces in the
knowledge that such attack will cause excessive ....
loss of life, injury to civilians or damage to civilian
objects, and causing death or serious injury to body
or health; (24) Committing any of the following acts;

.... (i) Conscripting, enlisting or recruiting children

under the age of fifteen (15) years into the national
armed forces;
18) Killing or wounding a person in the knowledge
that he/she is hors de combat, including a
combatant who, having laid down his/her arms or (ii) Conscripting, enlisting or recruiting children
no longer having means of defense, has under the age of eighteen (18) years into an armed
surrendered at discretion; force or group other than the national armed forces;
and

(9) Making improper use of a flag of truce, of the

flag or the military insignia and uniform of the (iii) Using children under the age of eighteen (18)
enemy or of the United Nations, as well as of the years to participate actively in hostilities; and
distinctive emblems of the Geneva Conventions or
other protective signs under International
Humanitarian Law, resulting in death, serious ....
personal injury or capture;

Any person found guilty of committing any of the

.... acts specified herein shall suffer the penalty
provided under Section 7 of this Act.288
(Emphasis supplied)
(12) Killing, wounding or capturing an adversary
by resort to perfidy;
Acts of willful killing, as opposed to "murder"
under the Rome Statute, deportation or forcible
.... transfer of populations, torture, and the sexual
offenses under the third category of war crimes are
also listed as "other crimes against humanity"
(19) Committing rape, sexual slavery, enforced under Republic Act No. 9851.
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence
also constituting a grave breach of the Geneva Unlike the Rome Statute, Republic Act No. 9851
Conventions or a serious violation of common also adds or includes among other crimes against
Article 3 to the Geneva Conventions; humanity persecution against any individual,
group, or collectivity based on their sexual
orientation. Enforced or "involuntary disappearance
.... of persons" is also a punishable crime against
humanity.289

(21) Intentionally using starvation of civilians as a

method of warfare by depriving them of objects Republic Act No. 9851 holds superiors liable as
indispensable to their survival, including willfully principals for crimes committed by subordinates
impeding relief supplies as provided for under the under their effective command and control.290
Geneva Convention and their Additional Protocols; This provides for command responsibility "as a
form of criminal complicity" that jurisprudence has would be a superfluity thus, ultimately ineffectual.
recognized:291 The Philippines would remain bound by
obligations expressed in the Rome Statute:

In other words, command responsibility may be

loosely applied in amparo cases in order to identify [G]enerally accepted principles of international law
those accountable individuals that have the power form part of Philippine laws even if they do not
to effectively implement whatever processes an derive from treaty obligations of the Philippines.
amparo court would issue. In such application, the
amparo court does not impute criminal
responsibility but merely pinpoint the superiors it ....
considers to be in the best position to protect the
rights of the aggrieved party.
Some customary international laws have been
affirmed and embodied in treaties and conventions.
Such identification of the responsible and A treaty constitutes evidence of customary law if it
accountable superiors may well be a preliminary is declaratory of customary law, or if it is intended
determination of criminal liability which, of course, to codify customary law. In such a case, even a
is still subject to further investigation by the State not party to the treaty would be bound
appropriate government agency. thereby. A treaty which is merely a formal
expression of customary international law is
enforceable on all States because of their
Relatedly, the legislature came up with Republic membership in the family of nations. For instance,
Act No. 98)1 to include command responsibility as the Vienna Convention on Consular Relations to
a form of criminal complicity in crimes against binding even on non-party States because the
international humanitarian law, genocide and other provisions of the Convention are mostly codified
crimes. RA 9851 is thus the substantive law that rules of customary international law binding on all
definitively imputes criminal liability to those States even before their codification into the
superiors who, despite their position, still fail to Vienna Convention. Another example is the Law of
take all necessary and reasonable measures within the Sea, which consists mostly of codified rules of
their power to prevent or repress the commission of customary international law, which have been
illegal acts or to submit these matters to the universally observed even before the Law of the
competent authorities for investigation and Sea was ratified by participating States.
prosecution.292 (Emphasis supplied, citations
omitted)
Corollarily, treaties may become the basis of
customary international law. While States which
All told, the more restrictive Rome Statute may are not parties to treaties or international
have even weakened the substantive protections agreements are not bound thereby, such
already previously afforded by Republic Act No. agreements, if widely accepted for years by many
9851. In such a case, it may well be beneficial to States, may transform into customary international
remove the confusion brought about by laws, in which case, they bind even non-signatory
maintaining a treaty whose contents are States.
inconsistent with antecedent statutory provisions.

In Republic v. Sandiganbayan, this Court held that

XXI even in the absence of the Constitution, generally
accepted principles of international law remain part
of the laws of the Philippines. During the
It has been opined that the principles of law in the interregnum, or the period after the actual takeover
Rome Statute are generally accepted principles of of power by the revolutionary government in the
international law. Assuming that this is true and Philippines, following the cessation of resistance
considering the incorporation clause, the by loyalist forces up to 24 March 1986
Philippines' withdrawal from the Rome Statute (immediately before the adoption of the Provisional
Constitution), the 1973 Philippine Constitution was law embodied in the Rome Statute are binding on
abrogated and there was no municipal law higher the Philippines even if the Statute has yet to be
than the directives and orders of the revolutionary ratified by the Philippine Senate. In short, the
government. Nevertheless, this Court ruled that principles of law enunciated in the Rome Statute
even during this period, the provisions of the are now part of Philippine domestic law pursuant to
International Covenant on Civil and Political Section 2 , Article II of the 1987 Philippine
Rights and the Universal Declaration of Human Constitution.293 (Emphasis in the original,
Rights to which the Philippines is a signatory, citations omitted)
remained in effect in the country. The Covenant
and Declaration are based on generally accepted
principles of international law which are applicable Chapter VII, Section 15 of Republic Act No. 9851
in the Philippines even in the absence of a enumerates the applicable sources of international
constitution, as during the interregnum. law that guide its interpretation and
Consequently, applying the provisions of the implementation:
Covenant and the Declaration, the Filipino people
continued to enjoy almost the same rights found in
the Bill of Rights despite the abrogation of the
SECTION 15. Applicability of International Law.
1973 Constitution.
— In the application and interpretation of this Act,
Philippine courts shall be guided by the following
sources:
The Rome Statute of the International Criminal
Court was adopted by 120 members of the United
Nations (UN) on 17 July 1998. It entered into force
(a) The 1948 Genocide Convention;
on 1 July 2002, after 60 States became party to the
Statute through ratification or accession. The
adoption of the Rome Statute fulfilled the
international community's long-time dream of (b) The 1949 Geneva Conventions I-IV, their 1977
creating a permanent international tribunal to try Additional Protocols I and II and their 2005
serious international crimes. The Rome Statute, Additional Protocol III;
which established an international criminal court
and formally declared genocide, war crimes and
other crimes against humanity as serious (c) The 1954 Hague Convention for the Protection
international crimes, codified generally accepted of Cultural Property in the Event of Armed
principles of international law, including customary Conflict, its First Protocol and its 1999 Second
international laws. The principles of law embodied Protocol;
in the Rome Statute were already generally
accepted principles of international law even prior
to the adoption of the Statute. Subsequently, the
(d) The 1989 Convention on the Rights of the Child
Rome Statute itself has been widely accepted and,
and its 2000 optional Protocol on the Involvement
as of November 2010, it has been ratified by 114
of Children in Armed Conflict;
states, 113 of which are members of the UN.

(e) The rules and principles of customary

There are at present 192 members of the UN. Since
international law;
113 member states have already ratified the Rome
Statute, more than a majority of all the UN
members have now adopted the Rome Statute as
part of their municipal laws. Thus, the Rome (f) The judicial decisions of international courts
Statute itself is generally accepted by the and trbunals;
Community of nations as constituting a body of
generally accepted principles of international law.
The principles of law found in the Rome Statute (g) Relevant and applicable international human
constitute generally accepted principles of rights instruments;
international law enforceable in the Philippines
under the Philippine Constitution. The principles of
(h) Other relevant international treaties and
conventions ratified or acceded to by the Republic
of the Philippines; and 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
(i) Teachings of the most highly qualified publicists Criminal Court retains jurisdiction over any and all
and authoritative commentaries on the foregoing acts committed by government actors until March
sources as subsidiary means for the determination 17, 2019. Hence, withdrawal from the Rome
of rules of international law. Statute does not affect the liabilities of individuals
charged before the International Criminal Court for
acts committed up to this date.
As listed by the Office of the Solicitor General, the
Philippines also remained as state party to these
international conventions and human rights As guide for future cases, this Court recognizes
instruments: that, as primary architect of foreign policy, the
President enjoys a degree of leeway to withdraw
from treaties which are bona fide deemed contrary
(a) The International Covenant on Civil and to the Constitution or our laws, and to withdraw in
Political Rights; keeping with the national policy adopted pursuant
to the Constitution and our laws.

(b) The International Covenant on Economic,

Social, and Cultural Rights; However, the President's discretion to withdraw is
qualified by the extent of legislative involvement
on the manner by which a treaty was entered into
(c) The Convention Against Torture; 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
(d) The Convention on the Discrimination Against
by succeeding laws. Treaties where Senate
Women; an Elimination of Discrimination; and
concurrence for accession is expressly premised on
the same concurrence for withdrawal likewise
cannot be the subject of unilateral withdrawal. The
(e) The Convention on the Elimination of Racial imposition of Senate concurrence as a condition
Discrimination.294 may be made piecemeal, through individual. Senate
resolutions pertaining to specific treaties, or
through encompassing legislative action, such as a
Thus, petitioner’s concern that the country's law, a joint resolution by Congress, or a
withdrawal from the Rome Statute abjectly and comprehensive Senate resolution.
reversibly subverts our basic human rights appears
to be baseless and purely speculative.
Ultimately, the exercise of discretion to withdraw
from treaties and international agreements is
All told, the consolidated Petitions are dismissed susceptible to judicial review in cases attended by
for failing to demonstrate justiciability. While we grave abuse of discretion, as when there is no clear,
commend the zealousness of petitioners in seeking definite, or reliable showing of repugnance to the
to ensure that the President acts within the bounds Constitution or our statutes, or in cases of
of the Constitution, they had no standing to file inordinate unilateral withdrawal violating requisite
their suits. We cannot grant the reliefs they seek. legislative involvement. Nevertheless, any attempt
The unfolding of events, including the International to invoke the power of judicial review must
Criminal Court’s acknowledgment of withdrawal conform to the basic requisites of justiciability.
even before the lapse of one year from initial Such attempt can only proceed when attended by
notice, rendered the Petitions' moot, removing any incidents demonstrating a properly justiciable
potential relief from this Court’s sphere. controversy.
WHEREFORE, the consolidated Petitions in G.R.
Nos. 238875, 239483, and 240954 are
DISMISSED for being moot.

SO ORDERED.

Peralta, C.J., Perlas-Bernabe, Caguioa, Gesmundo,

Hernando, Carandang, Lazaro-Javier, Inting,
Zalameda, M. Lopez, Delos Santos, Gaerlan,
Rosario, and J. Lopez, JJ., concur.