Supreme Court of the Philippines

President has ‘much leeway’ to withdraw from treaty – Supreme Court

Lian Buan
‘The Court appears to have expanded the President's leeway to withdraw from a treaty.. This has far-reaching consequences,’ says international law professor Romel Bagares

Presidents “enjoy much leeway” in withdrawing from treaties even without a prior determination by a court, said the Supreme Court, a pronouncement that has “far-reaching consequences” according to an international law professor behind one of the two failed petitions to compel President Rodrigo Duterte to rejoin the International Criminal Court (ICC).

The Supreme Court junked the two petitions challenging Duterte’s unilateral withdrawal from the Rome Statute, the treaty that created the ICC. The decision was based on many procedural grounds, including mootness since the United Nations already accepted the withdrawal.

A fundamental question in those petitions was: how much discretion is given to a president when abrogating these treaties?

In a 15-0 decision, the Supreme Court said a lot.

“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,” said the decision penned by Associate Justice Marvic Leonen released Wednesday, July 21.

The Supreme Court said there are three rules:

  1. Presidents can withdraw if he/she determines that the treaty is contradictory to the Constitution or our laws
  2. Presidents cannot unilaterally withdraw from a treaty that was entered into with congressional imprimatur
  3. Presidents cannot unilaterally withdraw if the Senate has expressly declared that the treaty they entered into can only be withdrawn with the concurrence of the upper house

On the first point, who makes the determination that the treaty is contradictory to the Constitution or our laws? Either the court, or the president himself or herself, said the Supreme Court.

But a withdrawal not based on a court determination is “more susceptible to a judicial challenge,” said the Supreme Court.

“Any such determination must have clear and definite basis; any wanton, arbitrary, whimsical, or capricious withdrawal is correctible by judicial review,” said the Supreme Court.

However, in this case, the Supreme Court said it was bound to junk the petitions because the Rome Statute allows state parties to withdraw, the withdrawal was accepted by the United Nations, and Duterte followed procedures.

“As far as established facts go, all there is for this Court to rely on are the manifest actions of the executives, which have nonetheless all been consistent with the letter of the Rome Statute. Suggestions have been made about supposed political motivations, but they remain just that: suggestions and suppositions,” said the Supreme Court.

Duterte withdrew from the Rome Statute, a month after retired prosecutor Fatou Bensouda opened an ICC preliminary examination into the drug war killings.

‘Far reaching consequences’

“The most important point here is that the Court appears to have expanded the President’s leeway to withdraw from a treaty, on the ground that a treaty is contrary to the constitution or to law. That is now the general rule,” said Romel Bagares, international law professor and lead counsel for the Philippine Coalition for the ICC (PCICC) which is one of the two petitioner groups in this case.

Bagares said “this has far-reaching consequences as far as the President’s exercise of foreign policy prerogatives are concerned.”

“In fact we see that already happening in regard to the VFA (Visiting Forces Agreement), which has remained in suspended animation, as the President has withdrawn from it, and then placed such withdrawal under conditional and extendible suspension to date,” Bagares added.

The Senate as a body has also filed a petition questioning Duterte’s unilateral abrogation of VFA, a case which was still pending in the Supreme Court.

“From now on, the Senate has to specify in its resolution of concurrence to a treaty that it cannot be withdrawn by the President without its concurrence,” said Bagares, referring to the third point in the above list.

In junking the petition filed by opposition senators against the unilateral withdrawal of the ICC, the Supreme Court faulted the Senate for not passing a resolution that expressed their clear position that their concurrence must be sought before withdrawing from a treaty. 

Presidential discretion

In the VFA petition that Senate as a body filed, Senator Richard Gordon said it was also a way to clarify the limits of the power of a president.

Retired justice Francis Jardeleza during oral arguments said the limits of presidential discretion must also be answered in the ICC case.

In the ICC case, the Supreme Court said there are two ways to limit presidential discretion.

One is if Congress passes a law that implements the treaty in question. In that case, the “president cannot withdraw from the treaty being implemented unless the statute itself is repealed,” said the Supreme Court.

Bagares said they would clarify that in their motion for reconsideration, because the implementing law seems to be the International Humanitarian Law (IHL) enacted in 2009. The conflict? The Philippines under Estrada signed the Rome Statute in 2000. Gloria Arroyo enacted IHL in 2009. And it was only in 2011 when the Senate under Benigno “Noynoy” Aquino III concurred in Rome Statute so that the Philippines could officially join the ICC.

Is the IHL the implementing law of the treaty? For Bagares, yes it is, and it also means there is congressional imprimatur.

“There is congressional imprimatur to the prior treaty signed  by the executive (Estrada time) but not yet concurred in by the Senate,” said Bagares.

The second way to limit presidential discretion is if Senate declares explicitly that the treaty needs concurrence for the withdrawal.

“The Senate’s specification of the need for its concurrence to be obtained in a withdrawal binds the president and may prevent him from proceeding with withdrawal,” said the Supreme Court.

Senate has such a pending resolution, but it was blocked in 2017 by Senator Manny Pacquiao who was at that time a staunch ally of Duterte.

Pacquiao has now turned into the President’s foe as the PDP-Laban party members fight for supremacy within the ruling party with the 2022 elections just a few months away. –

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.