Is the president’s withdrawal from the ICC subject to judicial review?

By Atty. Eduardo T. Reyes III

            As President Rodrigo Roa Duterte is counting the final days of his presidential term, much of the legal controversy relating to the charges filed against him before the International Criminal Court (ICC) and his unilateral act of withdrawing from the international body, looks likely to linger.

News abounds that Prosecutor Bensouda had pushed forward with the investigation on the “crimes against humanity” charge against those responsible in the implementation of President Duterte’s “war on drugs”.

This article will underline two (2) legal  points which were laid down by the Supreme Court (SC) in the amalgamated cases entitled Senator Francis “Kiko” N. Pangilinan, et al. v. Alan Peter S. Cayetano, et al./Philippine Coalition for the International Criminal Court (PCICC), et al. v. Office of the Secretary, represented by Hon. Salvador C. Medialdea, et al./Integrated Bar of the Philippines v. Office of the Executive Secretary, represented by Salvador C. Medialdea, et al., G.R. No. 238875/G.R. No. 239483/G.R. No. 240954, which were handed down on March 16, 2021 but uploaded on the SC website only last  July 21, 2021. 

            The two legal issues that had been resolved by the SC are: (1) Is the unilateral withdrawal by President Duterte from the ICC valid and effective?; and, (2) Is such act subject to review by the SC?

It should be noted that in the SC decision which tackled these issues, it laid down the foundational considerations first. It began with the fundamental principle of “separation of powers” which entreats each department of government (executive, legislative or judicial) to respect the two (2) others as co-equal bodies. Yet in the same breath, the SC reminds that among the three stately powers, it is to the judiciary that belongs that power to interpret the constitution particularly to delineate the frontiers of their respective powers as may be stated and/ or intended therein. Thus, it said:

“Separation of powers is fundamental in our legal system. The Constitution delineated the powers among the legislative, executive, and judicial branches of the government, with each having autonomy and supremacy within its own sphere. This is moderated by a system of checks and balances “carefully calibrated by the Constitution to temper the official acts of each branch.  Among the three branches, the judiciary was designated as the arbiter in allocating constitutional boundaries.” 

And this “judicial power”, according to the SC, is triggered under two scenarios, thus: 

“A plain reading of the Constitution identifies two instances when judicial power is exercised: (1) in settling actual controversies involving rights which are legally demandable and enforceable; and (2) in determining whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”

Now on to the legal issues.

(1)Is the unilateral withdrawal by President Duterte

from the ICC valid and effective?

The answer is in the affirmative because of two reasons: 1) the ICC itself had acknowledged the withdrawal as effective; and, 2) Our own Senate did not provide any mechanisms or conditions on how such withdrawal must be effected, hence any manner of withdrawal by the president suffices. Thus:

“On March 19, 2019, the International Criminal Court itself, through Mr. O-Gon Kwon, the president of the Assembly of States Parties, announced the Philippines’ departure from the Rome Statute effective March 17, 2019. It made this declaration with regret and the hope that such departure “is only temporary and that it will re-join the Rome Statute family in the future.”

This declaration, coming from the International Court 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. X x x Moreover, while its text provides a mechanism on how to withdraw from it, the Rome Statute does not have any proviso on the reversal of a state party’s withdrawal. We fail to see how this Court can revoke-as what petitioners are in effect asking us to do-the country’s withdrawal from the Rome Statute, without writing new terms into the Rome Statute.”  

Moving ahead to the next legal issue. 

(2) Is such act of withdrawal subject to review by the SC? 

The answer to this legal question is: yes but with a qualification.

“As guide for future cases, this Court recognizes that as primary  architect of foreign policy, the President enjoys a degree of leeway to withdraw from treaties which are  bona fide deemed contrary to the Constitution or our laws, and to withdraw in keeping with the national policy adopted pursuant to the Constitution and our laws.  

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 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 by succeeding laws. Treaties where Senate concurrence for accession is expressly premised on the same concurrence for withdrawal likewise cannot be the subject of unilateral withdrawal. The imposition of Senate concurrence as a condition may be made piecemeal, through individual Senate resolutions pertaining to specific treaties, or through encompassing legislative action, such as a law, a joint resolution by Congress, or a comprehensive Senate resolution.  

Ultimately, the exercise of discretion to withdraw from treaties and international agreements is susceptible to judicial review in cases attended by grave abuse of discretion, as when there is no clear, definite, or reliable showing of repugnance to the Constitution or our statutes, or in cases of inordinate unilateral withdrawal violating requisite legislative involvement. Nevertheless, any attempt to invoke the power of judicial review must conform to the basic requisites of justiciability. Such attempt can only proceed when attended by incidents demonstrating a properly justiciable controversy.

All told, the consolidated Petitions are dismissed for failing to demonstrate justiciability. While we commend the zealousness of petitioners in seeking to ensure that the President acts within the bounds of the Constitution, they had no standing to file their suits. We cannot grant the reliefs they seek. The unfolding of events, including the International Criminal Court’s  acknowledgment of withdrawal even before the lapse of one year from  initial notice rendered the Petitions moot, removing any potential relief from this Court’s sphere.”  

            In short, the SC ruled that the petitions questioning the validity of President Duterte’s withdrawal from the ICC had been rendered moot and thus had to be tossed out. But the next question is: what happens to those acts constitutive of crimes against humanity which were perpetrated before the withdrawal which became effective on March 17, 2019 and even those done after? To this the SC assured that Philippine courts have sufficient jurisdiction to try those that may have been committed after March 17, 2019; while as to those already filed before the ICC in reference to acts committed before such date, the ICC will retain jurisdiction, thus:   

“Mechanisms that safeguard human rights and protect against the grave offenses sought to be addressed by the Rome Statute remain formally in place in this jurisdiction. Further, the International Criminal Court retains jurisdiction over any and all acts committed by government actors until March 17, 2019 . Hence, withdrawal from the Rome statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date.”  

Yet again, according to the SC, it does not want to second-guess the ICC on what it intends to do in regard to the cases instituted relative to the “war on drugs” because at this time, trial has not yet even begun. But because this is not the precise legal issue raised in the consolidated petitions, it may be argued that this portion of the decision relative to the pronouncement that the withdrawal from the ICC does not discount the possibility of the case moving forward is not the controlling legal doctrine and merely constitutes as “obiter dictum” which means “a mere expression of an opinion with no binding force for purposes of res judicata and does not embody the determination of the court.  (Alejandro I. Alcantara and The Sarangani Cattle Company, Inc. v. The Guhay Clan, et al. and The National Commission On Indigenous Peoples and the Department of Environment and Natural Resources, G.R. Nos. 231410-11. September 11, 2019).

Like a leaf hanging on a twig after a storm, this precarious legal issue of whether the ICC can proceed with the case on the “war on drugs”  will be resolved when the proper case -or the proper time- comes.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).