1. Case Digest of Pangilinan vs. Cayetano [Link]., GR Nos.

238875, 239483, 240954, March 16,

2016
Facts:
On February 8, 2018, the Office of International Criminal Court Trial Prosecutor Fatou Bensouda
commenced the preliminary examination of the atrocities allegedly committed in the
Philippines pursuant to the Duterte administration's war on drugs. This is based on its
jurisdiction to "investigate, prosecute, and try" individuals accused of international crimes of
genocide, crimes against humanity, war crimes, and the crime of aggression. On March 15,
2018, the Philippines announced its withdrawal from the Rome Statute and, consequently, the
International Criminal Court. On March 16, 2018, it formally submitted its Notice of Withdrawal
through a Note Verbale to the United Nations Secretary- General's Chef de Cabinet. The
Secretary General received this communication the following day, March 17, 2018.
As a reaction to the withdrawal, petitions for Certiorari and Mandamus under Rule 65 of the
1997 Rules of Civil Procedure were filed, seeking to: (a) declare the Philippines' withdrawal
from the Rome Statute as invalid or ineffective, since it was done without the concurrence of at
least two-thirds of all the Senate's members; and (b) compel the executive branch to notify the
United Nations Secretary-General that it is cancelling, revoking, and withdrawing the
Instrument of Withdrawal. Petitioners argue that, as a treaty that the Philippines validly
entered into, the Rome Statute has the same status as an enactment of Congress, as a law in
the Philippines. They claim that the President cannot repeal a law. They aver that the country's
withdrawal from a treaty requires the concurrence of at least two-thirds of the Senate.
Moreover, petitioners insist that the protection of human rights will be weakened by the
withdrawal from the treaty. Lastly, petitioners invoke the case of South Africa where their
withdrawal was made ineffective due to the South African Opposition Democratic Alliance, the
South African High Court ruling that the president's withdrawal was premature and
procedurally irrational.
On the other hand, Respondents through the OSG countered that the petitioners do not have
the standing to question the wisdom of the President's sovereign power to withdraw from the
Rome Statute, absent any proof of actual or immediate danger of sustaining a direct injury as a
result of said withdrawal. Respondents claim that a Rule 65 petition is improper because the
acts of the President complained of were not in the exercise of judicial or quasi-judicial powers.
Moreover, mandamus cannot lie against a discretionary act of a president. Further, they argued
that the petitions do not present a justiciable controversy because the withdrawal from a treaty
is a political question, being a policy determination delegated to the wisdom of the executive.
Also, respondents assert that the Constitution does not expressly require Senate concurrence in
withdrawing. Lastly, respondents aver that the rights being protected under the Rome Statute
are adequately safeguarded by domestic laws. And that the withdrawal was valid for having
complied with the Rome Statute, which requires only a written notification of withdrawal.
Issues:
(1.) Whether or not petitioners have sufficiently discharged their burden of showing that
this case is justiciable.
(2.) Whether or not the Philippines' withdrawal from the Rome Statute through a Note
Verbale delivered to the Secretary-General of the United Nations is valid, binding, and
effectual.
(3.) Whether or not the Philippines' withdrawal from the Rome Statute places the
Philippines in breach of its obligations under international law.
(4.) Whether or not the Philippines' withdrawal from the Rome statute will diminish the
Filipino people's protection under international law
Held:
(1) No. The case is already moot, and petitioner’s do not have the legal standing to file the
petition. Further, the remedies of certiorari and mandamus are not proper.
In resolving constitutional issues, there must be an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory. A case is moot when it
ceases to present a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
The Philippines has done all that were needed to facilitate the withdrawal in
consonance to the treaty. And on March 19, 2019, the International Criminal Court itself
announced the Philippines' departure from the Rome Statute effective March 17, 2019. 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. This Court's interference and ruling on what course of action to take
would mean an imposition of its will not only on the executive, but also on the International
Criminal Court itself. This Court cannot encroach on matters beyond its jurisdiction.
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 the country's withdrawal from the Rome Statute, without writing
new terms into the Rome Statute.
As to the issue on the withdrawal's effectivity, which was one year from the United
Nations Secretary-General's receipt of the notification, this one-year period only pertains to the
effectivity, or when exactly the legal consequences of the withdrawal take effect. It neither
concerns approval nor finality of the withdrawal. This Court has no competence to interpret
with finality — let alone bind the International Criminal Court, the Assembly of States Parties,
individual state parties, and the entire international community — what this provision means,
and conclude that undoing a withdrawal is viable.
 As to their legal standing, the Senate's inaction makes premature petitioners-senators'
capacity to seek relief. The Senate's institutional reticence subverts the capacities otherwise
properly accruing to petitioners-senators. The Senate has refrained from passing a resolution
indicating that its assent should have been obtained in withdrawing from the Rome Statute.
Such reticence on this matter means that, as a collegial body, and in its wisdom, the Senate has
chosen not to assert any right or prerogative which it may feel pertains to it, if any, to limit,
balance, or otherwise inhibit the President's act.
On the other hand, persons invoking their rights as citizens failed to show the actual or
imminent injury that they sustained as a result of the President's withdrawal from the Rome
Statute. Petitioners claiming a tax payer’s suits failed to show any illegal expenditure of public
funds. As to the argument regarding transcendental importance, this case does not involve
funds or assets. Neither was there any express disregard of a constitutional or statutory
prohibition. Petitioners also failed to show that no other party has a more direct, personal, and
material interest. Petitioners failed to invoke any source of right to bring these Petitions.
Lastly, a writ of certiorari is unavailing here. The assailed government act is the
President's withdrawal from the Rome Statute. This, by any stretch of the imagination, may not
be considered an exercise of judicial or quasi-judicial power. This Court's mandate is clear: it is
the presence of grave abuse of discretion that sanctions us to act. The President's withdrawal
from the Rome Statute was in accordance with the mechanism provided in the treaty. The
Rome Statute itself contemplated and enabled a State Party's withdrawal. A state party and its
agents cannot be faulted for merely acting within what the Rome Statute expressly allows. As
to the writ of mandamus, there is no showing that the President has the ministerial duty
imposed by law to retract his withdrawal from the Rome Statute. Certainly, there is no
constitutional or statutory 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 assailed act.
(2) Yes. Philippines completed the requisite acts of withdrawal. This was all consistent and
in compliance with what the Rome Statute plainly requires. All that were needed to enable
withdrawal have been consummated. Further, the International Criminal Court acknowledged
the Philippines' action soon after it had withdrawn.
Treaty-making is a function lodged in the executive branch, which is headed by the
president. Nevertheless, a treaty's effectivity depends on the Senate's concurrence, in
accordance with the Constitution's system of checks and balances. 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. The Supreme Court adopts the following guidelines as the modality for
evaluating cases concerning the president's withdrawal from international agreements:
 First, the president enjoys some leeway in withdrawing from agreements which he or
she determines to be contrary to the Constitution or statutes. Senate concurrence is the formal
act that renders a treaty or international agreement effective, but it is not, in substance, the
sole criterion for validity and effectivity. Ultimately, a treaty must conform to the Constitution
and statutes. In enacting law, only after extensive participation by the people's elected
representatives is a bill presented to the president for signature. In contrast, in the case of a
treaty or international agreement, the president, or those acting under their authority,
negotiates its terms. It is merely the finalized instrument that is presented to the Senate alone,
and only for its concurrence. Having passed scrutiny by hundreds of the people's elected
representatives in two separate chambers which are committed to adopting legislation,
statutes enacted by Congress necessarily carry greater democratic weight than an agreement
negotiated by a single person. And as the chief executive, the president swore to preserve and
defend the Constitution, and faithfully execute laws. The abrogation of treaties that are
inconsistent with the Constitution and statutes is in keeping with the president's duty to uphold
the Constitution and our laws. These premises give the president leeway in unilaterally
withdrawing from treaties that he or she determines to be contrary to the Constitution or
statutes.
Second, the president cannot unilaterally withdraw from agreements which were
entered into pursuant to congressional imprimatur. Considering that effecting treaties is a
shared function between the executive and the legislative branches, Congress may expressly
authorize the president to enter into a treaty with conditions or limitations as to negotiating
prerogatives. In this instance, the president has no sole authority, and the treaty negotiations
were premised not only upon his or her own diplomatic powers, but on the specific investiture
made by Congress. This means that the president negotiated not entirely out of his or her own
volition, but with the express mandate of Congress, and more important, within the parameters
that Congress has set. Consistent with the mirror principle, any withdrawal from an
international agreement must reflect how it was entered into. As the agreement was entered
pursuant to congressional imprimatur, withdrawal from it must likewise be authorized by a law.
Here, Congress passed Republic Act No. 9851 well ahead of the Senate's concurrence to the
Rome Statute. Republic Act No. 9851 is broader than the Rome Statute itself. This reveals not
only an independent, but even a more encompassing legislative will — even overtaking the
course — of international relations.
Third, 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. The Senate may concur with a treaty or international agreement expressly
indicating a condition that withdrawal from it must likewise be with its concurrence. As
effecting treaties is a shared function between the executive and the legislative branches, the
Senate's power to concur with treaties necessarily includes the power to impose conditions for
its concurrence. Here, petitioner Senator Pangilinan mentioned during oral arguments that the
Senate has passed 17 resolutions concurring on different treaties, each of which came with a
clause that specifically required its concurrence for withdrawal. In contrast, no similar clause
was contained in Senate Resolution No. 546, through which the Senate ratified the Rome
Statute. Likewise, the Senate has yet to pass a resolution indicating that its assent should have
been obtained in withdrawing from the Rome Statute. While there was an attempt to pass such
a resolution, it has yet to be calendared, and thus, has no binding effect on the Senate as a
collegial body.
In sum, at no point and under no circumstances does the president enjoy unbridled
authority to withdraw from treaties or international agreements.
(3) No. There cannot be a breach of its obligations under international law when the
executive acted precisely in accordance with the procedure laid out by that treaty.
Pacta sunt servanda states that every treaty in force is binding upon the parties to it and
must be performed by them in good faith. The Philippines' withdrawal was submitted in
accordance with relevant provisions of the Rome Statute. The President complied with the
provisions of the treaty from which the country withdrew. Compliance with its textual
provisions cannot be susceptible of an interpretation that his act violated the treaty. Hence,
withdrawal per se from the Rome Statute does not violate pacta sunt servanda.
Moreover, the ruling on South Africa's withdrawal cannot be taken as binding
precedent. First, foreign judgments are not binding in our jurisdiction. At most, they may hold
persuasive value. Second, our Constitution requires that when the president enters into a
treaty, at least two-thirds of all 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 entire
parliament must approve the international agreement. The way our system of checks and
balances operates is different from how such a system would operate in a parliamentary
government.
Lastly, withdrawing from the Rome Statute does not discharge a state party from the
obligations it has incurred as a member. Article 127 (2) provides: A State shall not be
discharged, by reason of its withdrawal, from the obligations arising from this Statute while it
was a party to the statute.
(4.) No. Ample protection for human rights within the domestic sphere remain formally in
place.
The Constitution, which embodies our fundamental rights, was in no way abrogated by
the withdrawal. A litany of statutes that protect our rights remain in place and enforceable.
In 2009, President Macapagal-Arroyo signed into law Republic Act No. 9851, which
replicated many of the then unratified Rome Statute's provisions. Some provisions, however,
are significantly different. In some aspects, the law went beyond the Rome Statute. It
broadened the definition of torture, added the conscription of child soldiers as a war crime, and
stipulated jurisdiction over crimes against humanity anywhere in the world, as long as the
offender or victim is Filipino. This removes complementarity as a requirement for prosecution
of crimes against humanity under the ratified treaty.
All told, the more restrictive Rome Statute may have even weakened the substantive
protections already previously afforded by Republic Act No. 9851. In such a case, it may well be
beneficial to remove the confusion brought about by maintaining a treaty whose contents are
inconsistent with antecedent statutory provisions.

2.) Given that the petition assailing the unilateral withdrawal from the Rome Statute was
dismissed for being moot and academic, does the International Criminal Court still have
authority to investigate for alleged crimes against humanity relative to the "war on drugs" in
the Philippines, particularly: 1. committed before the date of effective withdrawal; 2.
committed thereafter? Explain.

Yes, the International Criminal Court still has authority to investigate for alleged crimes
against humanity relative to the war on drugs in the Philippines committed before and after the
date of the effective withdrawal.
As to the crimes committed before the withdrawal, Article 127 (2) of the Rome Statute
provides that a State shall not be discharged, by reason of its withdrawal, from the obligations
arising from this Statute while it was a Party to the Statute, including any financial obligations
which may have accrued. Thus, withdrawing from the Rome Statute does not discharge a state
party from the obligations it has incurred as a member. 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.
Until the withdrawal took effect on 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. Consequently, liability for
the alleged summary killings and other atrocities committed in the course of the war on drugs is
not nullified or negated here. The Philippines remained covered and bound by the Rome
Statute until March 17, 2019.
For the crimes against humanity committed after the withdrawal, the International
Criminal Court could still exercise its authority to investigate. Some customary international
laws have been affirmed and embodied in treaties and conventions. In such a case, even a State
not party to the treaty would be bound thereby. A treaty which is merely a formal expression of
customary international law is enforceable on all States because of their membership in the
family of nations.
 The Rome Statute codified generally accepted principles of international law, including
customary international laws. The principles of law embodied in the Rome Statute were already
generally accepted principles of international law even prior to the adoption of the Statute.
Subsequently, the Rome Statute itself has been widely accepted and, as of November 2010, it
has been ratified by more than a majority of all the UN as part of their municipal laws. Thus, the
Rome Statute itself is generally accepted by the community of nations as constituting a body of
generally accepted principles of international law. The principles of law found in the Rome
Statute constitute generally accepted principles of international law enforceable in the
Philippines under the Philippine Constitution, specifically the incorporation clause.