UP's legal experts question SC ruling on ICC withdrawal

Mike Navallo, ABS-CBN News

Posted at Aug 11 2021 09:00 PM

MANILA — In scathing critiques, various legal experts on Wednesday questioned the value of the recent Supreme Court (SC) ruling dismissing petitions challenging President Rodrigo Duterte’s unilateral withdrawal from the Rome Statute, the treaty that created the International Criminal Court (ICC).

“Was there a decision in this case? Is Pangilinan vs. Cayetano a decision? To me, it is not a decision. It is an advisory opinion,” retired Supreme Court Associate Justice Vicente Mendoza said. 

Mendoza was reacting to the presentations of constitutional and international law experts in an online forum organized by the University of the Philippines College of Law and the Justice George Malcolm Foundation.

An advisory opinion does not settle a controversy, is not binding on the courts, and is in fact prohibited under the Supreme Court’s own internal rules. 

Mendoza, a constitutional law expert, noted it was the Supreme Court itself which said there was no case or controversy to begin with, yet it still decided to come up with guidelines for future actions. 

In the Pangilinan ruling, the Supreme Court said the President has no unbridled authority to unilaterally withdraw from treaties, providing for instances when he/she should seek the concurrence of the Senate — when the Senate expressly said so, or if the treaty was entered into pursuant to a law passed by Congress.

But the SC dismissed the petitions filed by minority senators, the Philippine Coalition for the ICC, and the Integrated Bar of the Philippines which challenged Duterte’s withdrawal from the ICC soon after the ICC Prosecutor launched a preliminary examination on the human rights situation in the Philippines in 2018. 

The high court said the petitions were already moot at the time they were filed because the President has done everything to make the withdrawal effective. 

The petitioners, according to the high court, also lacked the standing or capacity to challenge the withdrawal because they supposedly failed to allege they suffered an injury.

But what is the value of the guidelines if the petitions were declared moot?

Mendoza said the guidelines could not be invoked in future cases because the high court did not resolve the validity of the withdrawal.

“Now that cannot be part of the legal system. You cannot bind the Supreme Court to it. You cannot even say, in the case of Pangilinan v. Cayetano, you said this. The Court will not be bound by its own decision. It’s not what they call a precedent,” he said.

“It was just an expression of opinion, no better than the opinion expressed here in this forum,” he added.


Retired Supreme Court Associate Justice Antonio Carpio called most of the discussions in the ruling “obiter” at best. 

Obiter dictum refers to the opinion of a judge which is not essential to the decision and will not be binding in future cases.

Diane Desierto, a UP Law alumna and an international law expert at the Notre Dame Law School and Keough School, shared the same view. 

“One has to question how the Supreme Court ended up with a hundred-page decision, interpreting constitutional law and the Rome Statute, if supposedly, the petitions were at the outset already moot?” she said.

In the 106-page decision, ponente SC Associate Justice Marvic Leonen extensively discussed Philippine domestic laws and international law, touching on the merits of the case at some point. 

“It wasn’t necessary to even go there. If they’re going to say that this entire matter is just decided by whether or not their petitions were filed before March 17, 2018, then this could have been a five-page decision, possibly even two,” Desierto said. 

Legal experts took pains to point out why the pronouncements by the Supreme Court should be clarified.

Mendoza cited a newspaper editorial saying the Supreme Court has already ruled that the President cannot withdraw from the Rome Statute without the consent of the Senate.

This, he said, could never be considered a ruling and the Court never said so. 

UP Constitutional Law Prof. Dante Gatmaytan also refuted the misconception that the Supreme Court has ruled that the Philippines should fulfill its obligations to the ICC.

“The media, when the decision came out, kept focusing its attention on the passages from the decision that suggest that the Philippines is still bound to cooperate with the ICC despite the withdrawal from the Rome Statute,” he said.

“And it’s a win for Duterte because that’s not even a ruling of the Supreme Court. That is found in the Rome Statute itself… It’s not that the Supreme Court continued to mandate cooperation from the national government,” he added.

“This is a win for President Duterte. What he wanted was a way out from the Rome Statute and that’s exactly what he got.”

What is clear however, experts agreed, is that the Pangilinan ruling will not have any legal effect on the ICC Prosecutor’s request to launch a probe on the drug war in the Philippines. 


But it’s not just the significance of the Supreme Court ruling that UP legal experts sought to question.

Even some of the pronouncements made in the decision were, according to them, “wrong.”

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Gatmaytan cited for instance the discussion on the lack of legal standing of petitioners challenging the ICC withdrawal. 

They invoked transcendental importance, which to Gatmaytan, dispenses with the standing requirement and the high court should not have looked for direct injury or illegal disbursement of funds.

He went on to say that it was wrong for the Supreme Court to emphasize the ICC’s acceptance of the Philippines’ withdrawal in declaring the petition moot.

“There’s an argument that it was unconstitutionally done. So if the withdrawal was not constitutional, then nothing could have been validly transmitted to the ICC and the ICC could not have validly accepted anything, and the withdrawal was not validly done. Therefore, the case is not moot,” he explained.

Even assuming the case was moot, he said, the case could fall under the exceptions given its importance.

From an international law perspective, Desierto pointed out that the Supreme Court was wrong in concluding that there was no mechanism to retract the withdrawal from the Rome Statute, citing the case of Gambia which initially withdrew from the ICC but subsequently rescinded the move within the 1-year period before the withdrawal took effect. 

“Unfortunately, because the [Supreme] Court only focused on the Rome Statute and did not look at the actual practices of the [International Criminal] Court, the rules of procedure in relation to the [ICC] as well as the decisions of the Assembly of State Parties, they failed to take into account that it is possible to have a notice of rescission within the 1-year interregnum, the 1-year period before the full effectiveness of withdrawal could take place,” she said.

The Supreme Court did in fact look at the South Africa case where its own Supreme Court voided the withdrawal from the ICC, although the high court said there are stark differences between the situation in the Philippines and in South Africa. 

Former ICC Judge Raul Pangalangan, for his part, asked when the petitions should have been filed if, as SC said, they were moot upon filing.

“If it was too late when it was filed, what would have been on time? In other words, if the President’s act of withdrawing from the statute says that at that moment there’s nothing more that the Court can do, when could have the petitioners challenged anything?,” he asked.

“Before the President’s act, it would have been a mere press release or a press statement… What will they challenge before the Court? And what will the Court do? Declare it as an unconstitutional press release?” he continued.

Pangalangan said the most troubling part of the SC ruling is that the Court would never have the opportunity to exercise its constitutional power and the entire safeguard of the separation of powers would have been erased.

Carpio, on the other hand, questioned the Supreme Court’s pronouncement that a treaty cannot amend a statute despite acknowledging that a treaty is transformed into domestic law by Senate concurrence. 

Prior rulings, he said, placed treaties on equal footing with domestic laws.

Carpio said the SC's ruling on ICC withdrawal could bog down and weaken a President's power to enter into treaties since treaty cannot violate prior inconsistent law.

He says the ruling also deprives the Senate of flexibility that its US counterpart enjoys.

The Constitution requires Senate concurrence in the ratification of a treaty.

The former magistrate argued that the same should be required upon withdrawal, following the “mirror doctrine” which the SC itself invoked in the Pangilinan ruling, but with a different outcome.

“The decision has changed this constitutional setup. The President is now above the law because he can unilaterally abrogate or repeal a concurred treaty which the decision admits has the status of a law and is transformed into a domestic law upon the Senate's concurrence, if the majority in the Senate does not make a timely objection before the Supreme Court or if the termination has already taken effect,” he said. 


Carpio faulted the Senate for failing to assert its rights.

“The majority in the Senate could have immediately passed a resolution that the President’s act is against the Constitution and brought the case to the Supreme Court," he said. 

"That would’ve settled it. But they did not and they only realized their mistake when the President again terminated another treaty, the VFA. That’s when they passed the resolution and went to the SC."

“So I would fault the Senate here. The Senate should have stood its ground at the very start because there is always this tension among the branches of government — each one trying to usurp the power of the other. They should have stood their ground immediately. But unfortunately they did not,” he said. 

The case on the VFA remains pending before the high court although the President has withdrawn the revocation.


Gatmaytan said the Pangilinan decision was a lost opportunity for the Supreme Court to protect vested rights. 

Desierto pointed out that the Rome Statute provided victims with access to a procedure that was independent of the Philippine system. This, she said, created rights and a vested right to a remedy.

“Before that remedy could be taken, can it just be taken by a President? Does it not in fact lend greater urgency to have a co-equal branch of government, the Legislature, weigh in and concur before stripping vested rights?” she asked.

She said a new petition, not exactly the same as the ones previously filed, could clarify — to what extent is the foreign policy power of the President really as unreviewable as far as Pangilinan seems to suggest.

“I’m wary of a Supreme Court that gives complete deference to the President on all matters of foreign affairs and foreign policy. If there's one thing that we've learned here in the United States, giving untrammeled discretion to a president without legislative oversight is a recipe for disaster,” she said.

Summing up what the Pangilinan ruling meant for the Supreme Court as an institution, UP College of Law Dean Edgardo Carlo Vistan II shared this view:

“When called upon to address the situation and make its mark on this constitutional law-making exercise, the Supreme Court, in my view, essentially gave its imprimatur to the Executive's action.”