Ruling on ICC withdrawal gives executive too much power — law experts

by Kristine Joy Patag (Philstar.com), 11 Aug 2021

MANILA, Philippines (Updated 6:27 p.m.) — The Supreme Court’s highly anticipated ruling on challenges against the executive branch’s withdrawal from the International Criminal Court gave President Rodrigo Duterte what “he wanted” and added another victory to his so far “spotless” record at the high court, a law expert said.

In a packed webinar on the Pangilinan v. Cayetano case on Wednesday, Constitutional Law expert Dan Gatmaytan stressed that the petitioners in the ruling raised issues of transcendental importance and that the case falls under exceptions on mootness.

Voting unanimously, the SC, in a ruling penned by Associate Justice Marvic Leonen, dismissed the three consolidated petitions questioning the Philippine government’s unilateral departure from the ICC due to mootness. It held that the petitioners also lacked legal standing.

Gatmaytan said the case involves perceived benefits for the public on rules on withdrawing from treaties and on available remedies to the thousands of extrajudicial killing victims. He added: “This victory gives President Duterte his latest win in this spotless record before the SC, probably the only president we’ve ever had who’s never lost.”

For retired Senior Associate Justice Antonio Carpio, the ruling “changed” the constitutional setup and put the president above the law as he can now unilaterally repeal a treaty, except when the Senate made its concurrence conditional — the ruling’s “saving grace.”

Retired ICC Judge Raul Pangalangan said he is “struck” by the SC’s ruling that the petitions were already rendered moot when filed, because they were questioning an “irreversible” act of the president. And even as the SC went on to hold that the petitions were moot, the court made findings of fact — an “intriguing” act by the high court, as international law expert and professor Diane Desierto noted.

Retired Justice Vicente Mendoza, who also chimed in the discussion, questioned whether there was a decision in Cayetano v. Pangilinan or if the court merely rendered an “advisory opinion” since it, at the start, held that the petitioners were questioning a “fait accompli” or a completed act.

The webinar was hosted by the UP College of Law, the UP Law Center Institute of International Legal Studies and the Justice George Malcolm Foundation.

READ: Withdrawal won’t stop International Criminal Court’s examination of Philippines

Senate gave way early

For Carpio, the Senate could have asserted their powers early on, but they only realized their “mistake” when Duterte attempted to again unilaterally abrogate another treaty— a decision he has since walked back — the Visiting Forces Agreement with the United States.

Carpio said that “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 have settled the matter quickly.

“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 do not,” Carpio added.

The SC in the ruling noted that Senate lacked legal standing as it did not pass a resolution indicating that assent should be obtained before 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,” the decision read.

But for Gatmaytan, this pronouncement by the SC “is just messed up.” He added that the SC saying that the senators’ inaction forecloses the chamber’s chances of bringing the matter to court “bothers [him] a lot.”

Gatmaytan asserted that the senators have standing when they feel that their prerogatives are being usurped by another branch of government.

“The constitutionality of the act of president is determined by the Senate by refusing to act on a resolution, by refusing to pass it, apparently, the Senate has no problem with it, therefore it’s constitutional — that’s also wrong,” he said.

Such pronouncement would let a legislature dominated by allies of the president “prevent dissent” by proposing an institutional position that refuses to act on a resolution.

A source familiar with the decision told Philstar.com that the Pangilinan v. Cayetano ruling also held that the power of the executive branch is not unlimited and that the “Senate can put as a condition for its concurrence” that withdrawal will also require their assent.

There are also other ways to clip the presidential prerogative, the source said, such as passing an implementing statute and passing a law limiting the president’s power to negotiate that will “therefore [imply] that Congress as a whole can have a hand in foreign policy.

Congress can also pass a law before the president enters into a treaty “that makes it unconstitutional to ratify a treaty that is diluted,” the source said.

So when can it be challenged?

Retired ICC Judge Pangalangan for his part weighed in on the “mootness” of the petitions.

The court held that when the Philippines submitted a Note Verbale on its departure from the ICC to the United Nations Secretary General’s Chef de Cabinet on March 16, which was received the following day, the country “completed the requisite acts of withdrawal.”

And since the ICC acknowledged the Philippines’ action, “[t]he Petitions were, therefore, moot when they were filed,” the ruling read.

If SC said the petitions were already moot at the time they were filed, which was two months since Duterte’s pronouncement, Pangalangan asked, “what would have been ‘on time’?”

He pointed out that petitioners cannot challenge the president’s mere pronouncement of withdrawal as it is a press statement only. “What will the court do? Declare it as an unconstitutional press release?”

Pangalangan continued: “For me, by court’s formulation here, either the case was moot exactly as court says or if they filed the petitions, ahead of the president’s statement, it would have been unripe for adjudication. There would have, in either case, no actual case.”

International law professor Desierto added: “For the SC to say that [what the president did was irreversible] is a narrow understanding of the practices in the [ICC].”

Desierto noted that in the case of Gambia, a notice of rescission was filed.

“All of the SC petitions were filed within this one year period [before effectivity] and yet the court said because the withdrawal was perfected, irreversible, no process by which the ICC could somehow accept a retraction of the president’s withdrawal,” she said.

“Had they actually taken a look at the pendency of Gambia’s notice of rescission, [then] perhaps the interpretation would have been different in this case,” Desierto added.

SC power to review

But for the retired ICC judge, the most troubling part of the Pangilinan v. Cayetano is how it would erase the separation of powers, and consequently the SC’s power to review.

UP College of Law Dean Edgardo Carlo Vistan II had said: “When called upon to address the situation and make its mark on this constitutional law-making exercise, the SC, in my view, essentially gave its primatur to the executive’s action.”

Pangalangan stressed that the Constitution holds that the SC has the power to review the constitutionality of treaties and international agreements.

“If at the moment the president withdraws from treaty, case is already moot and academic, then the court will never have any occasion to exercise its constitutional power and it renders an entire power, entire safeguard [of] the separation of powers as mentioned by Justice Carpio, is basically erased by this reading of mootness doctrine,” he added.