President ‘enjoys much leeway’ in withdrawing from international agreements —SC

The President of the Philippines can withdraw from international agreements that he or she determines to be contrary to the 1987 Constitution or laws, according to the Supreme Court (SC).

The high court made the pronouncement as it junked the petitions challenging President Rodrigo Duterte’s decision to end the country’s membership in the International Criminal Court (ICC), which is studying whether to conduct a full-blown investigation into his deadly war on drugs.

“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,” the Court’s March 16 ruling stated.

“Thus, even sans a judicial determination that a treaty is unconstitutional, the president also enjoys much leeway in withdrawing from an agreement which, in his or her judgment, runs afoul of prior existing law or the Constitution.”

In the event that courts determine the unconstitutionality of a treaty, the president, as primary architect of foreign policy, may unilaterally withdraw from it, the SC said in its decision, a copy of which was released to the media only on Wednesday.

“Owing to the preeminence of statutes enacted by elected representatives and hurdling the rigorous legislative process, the subsequent enactment of a law that is inconsistent with a treaty likewise allows the president to withdraw from that treaty,” it added.

Duterte has repeatedly said the Rome Statute—the treaty which created the ICC— is not enforceable in the Philippines as it was not published in the Official Gazette or a newspaper of general circulation, citing jurisprudence. Some lawyers, however, argued that publication is not a requirement.

The SC dismissed the petitions filed by a group of opposition senators and the Philippine Coalition for the ICC on the ground of mootness as the Philippines formally exited the Rome Statute on March 17, 2019.

“Here, the withdrawal has been communicated and accepted, and there are no means to retract it,” the decision read. “Having been consummated, these actions bind the Philippines.”

The SC added the Rome Statute does not have a clause on the reversal of a state party’s withdrawal.

“We fail to see how this Court can revoke—as what [the] petitioners are in effect asking us to do—the country’s withdrawal from the Rome Statute, without writing new terms into the Rome Statute,” it said.

“The President’s withdrawal from the Rome Statute was in accordance with the mechanism provided in the treaty.”

However, the SC said the president could not unilaterally withdraw from agreements, which were entered into pursuant to congressional imprimatur, or where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.

The magistrates also addressed the petitioners’ claim that the ICC exit violated their right to be provided ample remedies for the protection of their life and liberty.

“This fear of imagined diminution of legal remedies must be assuaged. 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,” the SC said.

It also cited the Rome Statute’s provision that the withdrawal does not affect criminal proceedings pertaining to acts that occurred when a country was still a state party.

“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,” the SC said. —LDF, GMA News