Francis Pangilinan vs Alan Peter Cayetano

G.R. No. 238875; G.R. No. 239483; G.R. No. 240954 – 898 Phil. 522 – Political Law – Constitutional Law – Fundamental Principles and State Policies – Incorporation Clause; Doctrine of Incorporation – Treaties – Withdrawal by the Executive from a Treaty Ratified by the Senate

In December 2000, President Joseph Estrada signed the Rome Statute. The Rome Statute is a multilateral treaty that established the International Criminal Court, where the gravest crimes under international law are prosecuted. In 2009, RA 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), which replicated provisions of the Rome Statute, was enacted. The Philippines, through Senate’s Resolution No. 546, ratified the Rome Statute in 2011.

In 2016, Rodrigo Duterte became President.

In 2016 and 2017, several complaints against Duterte were lodged in the International Criminal Court for alleged atrocities committed in Duterte’s war on drugs.

In February 2018, preliminary investigations against Duterte commenced. In March 2018, the Philippines, through the Duterte administration, withdrew from the Rome Statute.

In May 2018, Sen. Francis Pangilinan and several others filed a petition for certiorari and mandamus questioning the unilateral withdrawal by the President. Pangilinan argued that what the President did was unconstitutional.

In March 2019, the Philippines’ withdrawal from the Rome Statute became effective as announced by the International Criminal Court itself.

ISSUE: Whether or not the withdrawal by the executive from the Rome Statue is a justiciable question.

HELD: No. The issue was rendered moot by the acceptance and announcement by the ICC of the Philippines’ withdrawal.

The SC went on to discuss that while Senate concurrence is expressly required to make treaties valid and effective, no similar express mechanism concerning withdrawal from treaties or international agreements is provided in the Constitution or any statute.

Conversely, there is no constitutional provision granting the President to unilaterally withdraw.

Nevertheless, checks and balances exist to ensure that the President acts validly in withdrawing from a treaty:

1. President may withdraw from a treaty if it contradicts local laws or the Constitution.
2. Mirror Principle: any withdrawal from an international agreement must reflect how it was entered into.
3. The President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.

Since these guidelines exist, the act of the President withdrawing from a treaty is susceptible to judicial review.

Unfortunately, none of these guidelines may be applied to determine whether or not Duterte acted with grave abuse of discretion when he caused the Philippines to withdraw from the Rome Statute because the issue has already become moot when the ICC itself announced that the departure of the Philippines from the Rome Statue has become effective in March 2019.

This declaration, coming from the ICC itself, settles any doubt on whether there are lingering factual occurrences that may be adjudicated. No longer is there an unsettled incident demanding resolution. Any discussion on the Philippines’ withdrawal is, at this juncture, merely a matter of theory. The ICC has received and accepted the Philippine’s withdrawal. There is nothing that the Supreme Court can do.

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