SC: President has no ‘unbridled authority’ to withdraw from ICC treaty but junks petitions questioning it

Mike Navallo, ABS-CBN News

Posted at Jul 21 2021 06:41 PM

SC: President has no ‘unbridled authority’ to withdraw from ICC treaty but junks petitions questioning it 1
President Rodrigo Duterte gives a public statement at the Arcadia Active Lifestyle Center in Matina, Davao City on July 19, 2021. Roemari Limosnero, Presidential Photo/File

MANILA — The Supreme Court said the Philippine president has no “unbridled authority” to withdraw from treaties and any arbitrary withdrawal may be corrected by the courts but proceeded to junk the petitions questioning it on procedural grounds.

In a ruling dated March 16, 2021 but released only on Wednesday, July 21, the high court tried to settle a legal vacuum: While Senate concurrence is expressly required under the Constitution to make treaties valid and effective, there is no similar express mechanism concerning withdrawal from treaties or international agreements under the Constitution or Philippine laws. The President is also not granted unilateral power to terminate treaties. 

So was President Rodrigo Duterte’s withdrawal from the Rome Statute, the international treaty which created the International Criminal Court (ICC), valid?

The Supreme Court, through Associate Justice Marvic Leonen and concurred in by 14 other sitting magistrates, did not anymore address the issue because it ruled that the three petitions filed separately by minority senators, the Philippine Coalition for the International Criminal Court (PCICC) and the Integrated Bar of the Philippines (IBP) were not justiciable.


The high court noted that the ICC has received the communication from the Philippines withdrawing from the ICC on March 17, 2018, a day after the Philippines submitted its notice of withdrawal through a Note Verbale to the United Nations Secretary-General’s Chef de Cabinet, which rendered the petitions moot even before they were filed.

“Through these actions, the Philippines completed the requisite acts of withdrawal. This was all consistent and in compliance with what the Rome Statute plainly requires. By this point, all that were needed to enable withdrawal have been consummated,” the high court said in a 106-page ruling.

“Further, the International Criminal Court acknowledged the Philippines’ action soon after it had withdrawn. This foreclosed the existence of a state of affairs correctible by this Court’s finite jurisdiction. The Petitions were, therefore, moot when they were filed. The International Criminal Court’s subsequent consummate acceptance of the withdrawal all but confirmed the futility of this Court’s insisting on a reversal of complete actions,” it added.

There is nothing, SC said, in the Rome Statute that allows a state party to the treaty to reverse the withdrawal and the SC cannot impose its will on the Executive.


Three groups had sought to question Duterte’s withdrawal from the ICC.

Opposition lawmakers Senate Minority Leader Franklin Drilon and Senators Francis Pangilinan, Bam Aquino IV, Leila de Lima, Risa Hontiveros and Antonio Trillanes IV filed the first petition on May 16, 2018, arguing that the Philippines’ withdrawal of its ratification from the Rome Statute requires the concurrence of at least 2/3 of the members of the Senate.

They asked the high court to declare the withdrawal invalid or ineffective and compel the Executive Department to cancel, revoke or withdraw the instrument of withdrawal filed by the Philippines.

Under the Rome Statute, withdrawal from the ICC takes effect one year after the deposit of the instrument of withdrawal.

The second petition was filed by the Philippine Coalition for the ICC (PCICC) on June 13, 2018 claiming that the President committed grave abuse of discretion when he decided to withdraw from the ICC solely based on “capricious, whimsical, ridiculous, misleading or misled, incoherent and/or patently false grounds, with no basis in fact, law or jurisprudence.”

It asked the high court to declare the notice of withdrawal void and issue a writ of mandamus to compel the Executive Department to recall and revoke the notice of withdrawal and to submit the question of the country’s pullout from the Rome Statute to the Senate for deliberation.

The President had cited alleged bias of UN officials and claimed the ICC was being used as a political tool against him as his bases for withdrawing from the ICC.

The President’s announcement to withdraw from the ICC came after then-ICC Prosecutor Fatou Bensouda announced she was opening a preliminary examination on the human rights situation in the Philippines, eventually asking the ICC Pre-Trial Chamber for permission to launch a probe on the drug war killings just before she stepped down from office in June this year.

A third petition was filed by the Integrated Bar of the Philippines.


But the Supreme Court said none of the petitioners were able to establish their legal standing to challenge the President’s action.

The Senate, the SC noted, refrained from passing a resolution indicating that its concurrence should have been obtained before withdrawal from the Rome Statute, in contrast to 17 other treaties where the Senate passed resolutions requiring its concurrence before any withdrawal may be made.

The high court also rejected petitioners’ invocation of their status either as citizens or taxpayers, saying there must be a “present substantial interest” or a claim of illegal disbursement of public funds.

Neither did SC consider PCICC’s and IBP’s standing as associations because they supposedly failed to allege injury.

The Supreme Court also rejected petitioners' claim of transcendental importance of the issues in the case. It said the court can only decide in properly justiciable case. 

"Alleged transcendental importance…[is] better served when there are actual cases with proper parties suffering an actual or imminent injury,” it said.


But the high court laid down guidelines on how a president may withdraw from an international treaty.

The President, it said, has leeway in withdrawing from agreements he/she determines to be contrary to Constitution/statutes but cannot unilaterally withdraw agreements pursuant to a law passed by Congress or where the Senate requires its concurrence in the withdrawal from the treaty.

The Supreme Court considered situations where Congress passes a law to implement a prior treaty which the President cannot revoke without first repealing the law, or cases where Congress itself authorizes the President to enter into a treaty.

It also gave importance to the Senate’s power to concur with treaties, saying the Senate could expressly require the need for its concurrence upon withdrawal from the treaty.

The high court said the President’s power to withdraw from treaties is not absolute.

“[A]t no point and under no circumstances does the president enjoy unbridled authority to withdraw from treaties or international agreements. Any such withdrawal must be anchored on a determination that they run afoul of the Constitution or a statute. Any such determination must have clear and definite basis; any wanton, arbitrary, whimsical, or capricious withdrawal is correctible by judicial review,” it said.

The high court however clarified that a petition for certiorari under Rule 65 of the Rules of Court is not applicable when the President's withdrawal from the ICC cannot be considered an exercise of judicial or quasi-judicial power. 

But in the same ruling, it said that for the President’s action to be actionable by the Court, there must be grave abuse of discretion such as the President’s action breaking away from established procedure or was borne out of vindictiveness, as retaliation or out of personal motives. 

The ruling did not clarify how the President’s actions will be questioned if not through Rule 65.

Matters of foreign relations, it added, are not political questions. Although in this case, it ruled the President’s withdrawal was in accordance with the mechanism in the Rome Statute.

SC rejected arguments that the Philippines would violate the pacta sunt servanda principle in international law which does not allow State parties to invoke internal laws to justify failure to comply with treaties. It said that on the contrary, the Philippines complied with the Rome Statute in effecting the withdrawal from ICC.

SC also did not recognize invocation of the case in South Africa where their own SC voided their president's withdrawal from ICC. 

The high court said foreign judgments are not binding on Philippine courts and there are stark differences between the Philippines and South Africa.


The Supreme Court tried to assuage concerns over the Philippines’ withdrawal from the ICC, saying that the Philippines is still bound by its obligations when it was a member of the ICC, citing Article 127(2) of the Rome Statute.

“A State party withdrawing from the Rome Statute must still comply with this provision. Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate,” it said.

“Until the withdrawal took effect of March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court,” it added.

It remains to be seen if this pronouncement by the Supreme Court may be taken as binding on succeeding cases because the effect of the withdrawal was not the main issue of the ruling. 

Although professorial lecturer Romel Bagares, also lawyer for PCICC, said this aspect of the ruling is not obiter dictum (a judge's incidental expression of opinion, not essential to the decision and not establishing precedent) “as this discussion was central to the Court's holding on the process and effects of withdrawal from the Rome Statute under Art. 127.”

In addition, the high court cited RA 9851, a domestic law, as having provisions providing more protections of fundamental rights to Filipinos than the Rome Statute, such as inclusion of persecution of any individual, group or collectivity based on sexual orientation and enforced disappearances as crimes against humanity.

RA 9851 also holds superiors liable as principals for crimes committed by subordinates under their effective command and control. 

For Bagares, the most significant impact of the ruling is that it “appears to have expanded the President's leeway to withdraw from a treaty, on the ground that it is contrary to the constitution or to law. That is now the general rule.”

“In doing so, the Court also reversed the long-standing rule that a treaty transformed into Philippine law supersedes an earlier conflicting law (the lex posterior derogat priori rule),” he said.


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