ICC wí†hdráwAL
The President is once again under scrutiny of his detractors for his decision to wí†hdráw the Philippines from the Rome Statute by claiming that he has no legal basis to do so. They are again mistaken.
FIRST, they claim that publication is not necessary in order for the Rome Statute to be effective and enforceable in Philippines since Article 126 thereof does not require prior publication before it can be effective in the jurisdiction of the ratifying State. This claim is erroneous.
Treaties, such as the Rome Statute, become part of the law of the land through transformation pursuant to Article VII, Section 21 of the 1987 Constitution which provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” Only having the force and effect of a law, the same cannot be superior to our Constitution.
Giving effect to the Rome Statute without it undergoing the required publication under Article 2 of the New Civil Code, therefore, is not only contrary to the said law and the established jurisprudence enunciated by the Supreme Court in the leading case of Tañada vs. Tuvera, but more importantly to Article III, Sections 1 and 7 of the 1987 Constitution which respectively guarantee the rights of the people to due process and to be informed on matters of national concern. It also bears stressing that in Tañada, it did not distinguish whether the law is domestic or international. Thus, when the law does not distinguish, we must not distinguish - Ubi lex non distinguit nec nos distinguire debemus.
It is equally important to note that it is not only our country which requires the publication of treaties. In accordance with the respective organic and domestic laws of other countries, the Rome Statute only entered into force in their jurisdictions after its publication in their official journals or gazettes albeit instruments of ratification had been earlier deposited with the Secretary General of the United Nations.
SECOND, the claim that the President cannot wí†hdráw the Philippines from the Rome Statute effective immediately is also false. To reiterate, the Rome Statute has no legal effect insofar as the Philippines is concerned. As a result, provisions contained in the Rome Statue cannot be referred to. Assuming they may be so referred to, the Philippines cannot still be compelled to remain a party to the Rome Statute when its catalyst is exceeding its authority - such as in this case when the International Criminal Court (ICC) is subjectively insisting and arbitrarily exercising its jurisdiction over parties and matters which it does not have jurisdiction of. It must be remembered that compelling one to remain in an agreement when the other has breached its terms is a form of servitude, which is definitely contrary to public policy. Binding, therefore, a party to an instrument for a year before it may opt out of the same when the other has already been causing - and is continuing to cause – damage to the former is certainly unacceptable in international law.
THIRD, the related claim that there is no fraud in entering into the Rome Statute as the Philippines actively participated therein is incongruous. Fraud means deception. Thus, one cannot determine fraud in the early stages of entering into an agreement. Of course, why would one enter into an agreement if he or she knows that the other party will just renege on the latter’s reciprocal obligation? It is only during the execution of the agreement, assuming that the agreement is enforceable, when one realizes that he or she has been deceived into entering into an agreement. This is the case here. Our country was made to believe that international principles and public policies are to be maintained. Unfortunately, we were wrong.
FOURTH, on the claim that the ICC can continue its proceedings, the President is correct in that the ICC can no longer continue with its preliminary examination since there is no formal investigation yet. Article 127 (2) of the Rome Statue states that “wí†hdráwal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the wí†hdráwing State had a duty to cooperate and which were commenced prior to the date on which the wí†hdráwal became effective.” Even using the Rome Statue itself, only criminal investigations and proceedings may continue. In the case of the Philippines, the ICC has only commenced preliminary examination on whether or not it should proceed with a formal investigation as provided in Article 15 thereof. Then again, what is to continue if from the beginning the Rome Statute has never become effective?
FIFTH, there are also those who claim that wí†hdráwing from the Rome Statute requires the concurrence of the Senate. This claim runs counter to the commands of the 1987 Constitution. The required concurrence by at least two-thirds of all the members of the Senate under Article VII, Section 21 of the 1987 Constitution only pertains to the process of transformation or the process of transforming a treaty or international agreement into domestic or municipal law. Verily, there is nothing in the 1987 Constitution which provides for the same requirement in the event that the President decides to wí†hdráw from a treaty or international agreement. Providing for such a superfluous requirement would, therefore, run contrary to established jurisprudence which gives the President extensive authority in formulating the country’s foreign affairs and policy.
It must be emphasized that no less than our Supreme Court pronounced that, “the President, as head of State, is the sole organ and authority in the external affairs of the country.” It is therefore a basic tenet of the Philippines that, as a republican and democratic state, the President is the country's chief executive and administrative head of the Executive Department. Hence, he is considered the “chief architect of the nation’s foreign policy and the country’s sole representative with foreign nations.” Pursuant to his constitutional mandate for the country to pursue an independent foreign policy as provided in Section 7, Article II of the 1987 Constitution, and his corresponding duty to ensure that all laws are faithfully executed as provided in Section 17, Article VII thereof, the President thus has the power to revoke any treaty or international agreement without concurrence of the Senate.
FINALLY, we stress that the President’s decision is not based on some alleged fear from prosecution or attempt to evade public accountability. By his very character, the President knows no fear and has time and time again stated that he is willing to stake his honor, life, liberty, and the Presidency for the welfare of the Filipino people. Rather, the President was compelled to act in defense of the grace and dignity of the very office which he holds and of the sovereignty of the Philippines, both of which are being disrespected, nay assaulted by some sectors of the international community.
Therefore, we stand by the President’s decision to wí†hdráw our country as a member, or even a participant, from the Rome Statute. It must be stressed that institutions, no matter how influential, cannot prevent the President from exercising his sworn duty to serve and protect our country, as well as the lives of its citizenry.
Salvador Panelo
The President is once again under scrutiny of his detractors for his decision to wí†hdráw the Philippines from the Rome Statute by claiming that he has no legal basis to do so. They are again mistaken.
FIRST, they claim that publication is not necessary in order for the Rome Statute to be effective and enforceable in Philippines since Article 126 thereof does not require prior publication before it can be effective in the jurisdiction of the ratifying State. This claim is erroneous.
Treaties, such as the Rome Statute, become part of the law of the land through transformation pursuant to Article VII, Section 21 of the 1987 Constitution which provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” Only having the force and effect of a law, the same cannot be superior to our Constitution.
Giving effect to the Rome Statute without it undergoing the required publication under Article 2 of the New Civil Code, therefore, is not only contrary to the said law and the established jurisprudence enunciated by the Supreme Court in the leading case of Tañada vs. Tuvera, but more importantly to Article III, Sections 1 and 7 of the 1987 Constitution which respectively guarantee the rights of the people to due process and to be informed on matters of national concern. It also bears stressing that in Tañada, it did not distinguish whether the law is domestic or international. Thus, when the law does not distinguish, we must not distinguish - Ubi lex non distinguit nec nos distinguire debemus.
It is equally important to note that it is not only our country which requires the publication of treaties. In accordance with the respective organic and domestic laws of other countries, the Rome Statute only entered into force in their jurisdictions after its publication in their official journals or gazettes albeit instruments of ratification had been earlier deposited with the Secretary General of the United Nations.
SECOND, the claim that the President cannot wí†hdráw the Philippines from the Rome Statute effective immediately is also false. To reiterate, the Rome Statute has no legal effect insofar as the Philippines is concerned. As a result, provisions contained in the Rome Statue cannot be referred to. Assuming they may be so referred to, the Philippines cannot still be compelled to remain a party to the Rome Statute when its catalyst is exceeding its authority - such as in this case when the International Criminal Court (ICC) is subjectively insisting and arbitrarily exercising its jurisdiction over parties and matters which it does not have jurisdiction of. It must be remembered that compelling one to remain in an agreement when the other has breached its terms is a form of servitude, which is definitely contrary to public policy. Binding, therefore, a party to an instrument for a year before it may opt out of the same when the other has already been causing - and is continuing to cause – damage to the former is certainly unacceptable in international law.
THIRD, the related claim that there is no fraud in entering into the Rome Statute as the Philippines actively participated therein is incongruous. Fraud means deception. Thus, one cannot determine fraud in the early stages of entering into an agreement. Of course, why would one enter into an agreement if he or she knows that the other party will just renege on the latter’s reciprocal obligation? It is only during the execution of the agreement, assuming that the agreement is enforceable, when one realizes that he or she has been deceived into entering into an agreement. This is the case here. Our country was made to believe that international principles and public policies are to be maintained. Unfortunately, we were wrong.
FOURTH, on the claim that the ICC can continue its proceedings, the President is correct in that the ICC can no longer continue with its preliminary examination since there is no formal investigation yet. Article 127 (2) of the Rome Statue states that “wí†hdráwal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the wí†hdráwing State had a duty to cooperate and which were commenced prior to the date on which the wí†hdráwal became effective.” Even using the Rome Statue itself, only criminal investigations and proceedings may continue. In the case of the Philippines, the ICC has only commenced preliminary examination on whether or not it should proceed with a formal investigation as provided in Article 15 thereof. Then again, what is to continue if from the beginning the Rome Statute has never become effective?
FIFTH, there are also those who claim that wí†hdráwing from the Rome Statute requires the concurrence of the Senate. This claim runs counter to the commands of the 1987 Constitution. The required concurrence by at least two-thirds of all the members of the Senate under Article VII, Section 21 of the 1987 Constitution only pertains to the process of transformation or the process of transforming a treaty or international agreement into domestic or municipal law. Verily, there is nothing in the 1987 Constitution which provides for the same requirement in the event that the President decides to wí†hdráw from a treaty or international agreement. Providing for such a superfluous requirement would, therefore, run contrary to established jurisprudence which gives the President extensive authority in formulating the country’s foreign affairs and policy.
It must be emphasized that no less than our Supreme Court pronounced that, “the President, as head of State, is the sole organ and authority in the external affairs of the country.” It is therefore a basic tenet of the Philippines that, as a republican and democratic state, the President is the country's chief executive and administrative head of the Executive Department. Hence, he is considered the “chief architect of the nation’s foreign policy and the country’s sole representative with foreign nations.” Pursuant to his constitutional mandate for the country to pursue an independent foreign policy as provided in Section 7, Article II of the 1987 Constitution, and his corresponding duty to ensure that all laws are faithfully executed as provided in Section 17, Article VII thereof, the President thus has the power to revoke any treaty or international agreement without concurrence of the Senate.
FINALLY, we stress that the President’s decision is not based on some alleged fear from prosecution or attempt to evade public accountability. By his very character, the President knows no fear and has time and time again stated that he is willing to stake his honor, life, liberty, and the Presidency for the welfare of the Filipino people. Rather, the President was compelled to act in defense of the grace and dignity of the very office which he holds and of the sovereignty of the Philippines, both of which are being disrespected, nay assaulted by some sectors of the international community.
Therefore, we stand by the President’s decision to wí†hdráw our country as a member, or even a participant, from the Rome Statute. It must be stressed that institutions, no matter how influential, cannot prevent the President from exercising his sworn duty to serve and protect our country, as well as the lives of its citizenry.
Salvador Panelo