On 17 March 2018, the Philippines gave notice of its withdrawal from the Rome Statute. Its exit from the treaty creating the International Criminal Court (ICC) was a form of protest by President Rodrigo Duterte after Prosecutor Fatou Bensouda announced the opening of a preliminary examination into his “war on drugs” due to “reported incidents involv[ing] extra-judicial killings in the course of police anti-drug operations.” Although not referenced in Mrs. Bensouda’s announcement, reports of alleged state-sponsored killings of drug suspects, which may amount to international crimes, have previously been made by Amnesty International, Human Rights Watch, a Filipino lawyer, and two opposition legislators.
The withdrawal of the Philippines from the Rome Statute was decided unilaterally by President Duterte without consent from the Philippine Senate which ratified it. Is this legally valid? This is the threshold question that needs to be problematized concerning this development. Philippine law and jurisprudence do not squarely address the specific issue; but there is a strong argument in favor of giving the Philippine Senate the same shared power in treaty termination that it constitutionally enjoys in treaty ratification. This argument finds support in a structuralist reading of Philippine constitutional law and was validated in a decision which the High Court of South Africa rendered on a case with similar facts and legal context.
The puzzle of treaty termination in Philippine constitutional law
Article VII, Section 21 of the Philippine Constitution provides that “[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” As the Philippine Supreme Court held in BAYAN v. Executive Secretary, the participation of the Senate in treaty making is indispensable–it goes into the principles of “checks and balances” and “separation of powers” that inhere to the Philippines’ tripartite, republican government system. The question is whether this same theory holds for treaty termination. Arguably it does, as a necessary legal implication of the “doctrine of transformation.”
The Philippine Supreme Court explained in Pharmaceutical and Health Care Association of the Philippines v. Health Secretary that international law can be “transformed” into municipal law through any of the available constitutional mechanisms for domesticating it. One of these mechanisms is the Senate’s concurrence in the President’s ratification of an international treaty. Once the Senate concurs, the treaty is transformed into municipal law. Consequently, as the Philippine Supreme Court confirmed in Suplico v. NEDA, a treaty “may amend or repeal a prior law.” The reverse also holds true: if a subsequent law conflicts with a treaty in force, the rule of lex posterior derogat priori applies because the treaty, for legislative purposes, is a prior law amendable or repealable by a more recent law.
If a treaty in force has the status of municipal law, it follows by necessary implication that the Senate–as part of the legislative branch–should have a say on its fate. A majority of sitting Senators in the Philippines supports this position. On February 13, 2017, Senator Franklin Drilon introduced Senate Resolution No. 289 (S.R. No. 289), “expressing the sense of the Senate that termination of, or withdrawal from, treaties and international agreements concurred in by the Senate shall be valid and effective only upon concurrence by the Senate.” The measure was signed by fourteen Senators–a majority in the twenty-four-member chamber. In his sponsorship speech, Senator Drilon explained S.R. No. 289’s rationale: since the power to bind the Philippines by treaty is shared by the President and the Senate, a treaty ratified and concurred in “may not be undone without the shared power that put it into effect.” (Records of Deliberations, p. 1009-1010)
During interpellation, Senator Emmanuel Pacquiao raised the point that since Article VII, Section 21 of the Philippine Constitution is silent on the Senate’s role in treaty termination, S.R. No. 289 would appear to be unduly amending it (Records of Deliberations, p. 1012). This was a decisive intervention. With assent from Senator Drilon, the Senate granted Senator Pacquiao’s request to study the measure further before voting on it. Nonetheless, while S.R. No. 289 has yet to be approved, the fact that fourteen Senators endorsed it indicate the persuasiveness of the argument in favor of a “shared power” approach to treaty termination.
Interestingly, while the Philippine Senate was deliberating on S.R. No. 289 in February 2017, the High Court of South Africa was also hearing a case involving the same issues about the proper roles of the executive and legislative branches in treaty termination. This case concerns South Africa’s withdrawal from the Rome Statute–the same development that arose in the Philippines a year after.
A possible solution to the puzzle? The Democratic Alliance judgment
South Africa’s withdrawal from the Rome Statute on October 19, 2016 was the culmination of its dispute with the ICC concerning the latter’s order to arrest President Omar al-Bashir. The dispute was just one of many triggers of a long-brewing discontent with the ICC by members of the African Union.
South Africa’s withdrawal from the Rome Statute was done unilaterally by its national executive. Like in the case of the Philippines, Section 231 of the South African Constitution provides that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces.” But there is no direct provision in the South African Constitution clarifying whether the power to terminate treaties is also shared between Parliament and the national executive.
The Democratic Alliance, the largest minority party in South Africa’s Parliament, challenged the national executive’s unilateral decision to withdraw South Africa from the Rome Statute. In its Judgment in Democratic Alliance v. Minister of International Relations and Cooperation, the High Court of South Africa granted the petition and held that the unilateral withdrawal violates the constitution. The following points of the Democratic Alliance Judgment are particularly illuminating:
First, the High Court held that since Section 231 ordains a “separation of powers” scheme in treaty making, then by necessary inference, Parliament should also “[retain] the power to determine whether to remain bound to an international treaty.” (Judgment, para. 51)
Second, the High Court observed that a treaty is a “social contract” that gives rise to rights and obligations affecting the people of South Africa. Hence, “[t]he anomaly that the national executive can, without first seeking the approval of the people of South Africa, terminate those rights and obligations, is self-evident and manifest.” (Judgment, para. 52)
Third, the High Court held that the absence of explicit constitutional reference to treaty termination should be interpreted in favor of Parliament. The High Court said:
. . . there is probably a good reason why the Constitution provides for the power of the executive to negotiate and conclude international agreements but is silent on the power to terminate them. The reason is this: As the executing arm of the state, the national executive needs authority to act. That authority will flow from the Constitution or from an act of parliament . . . The absence of a provision in the Constitution or any other legislation of a power for the executive to terminate international agreements is therefore confirmation of the fact that such power does not exist unless and until parliament legislates for it. It is not a lacuna or omission. (Judgment, para. 54; underscoring supplied.)
Given the similarity of the factual and legal contexts of the Philippines and South Africa’s withdrawal from the Rome Statute, Democratic Alliance is instructive. While Philippine courts have not taken judicial notice of South African jurisprudence before, nothing prevents them from doing so, if helpful. As the Philippine Supreme Court conceded in Ang Ladlad v. Commission on Elections, foreign jurisprudence, while not binding, is persuasive on it. Democratic Alliance can thus be taken into consideration as a potential solution to the Philippines’ own legal puzzle concerning its withdrawal from the Rome Statute through a unilateral act by President Duterte.
The Philippine Senate has a pivotal role to play in helping bring legal clarity to this threshold issue. As the institution with whom the President shares constitutional treaty-making powers, it has the standing to assert a parallel role in treaty termination. The lacuna in Article VII, Section 21 of the Philippine Constitution is ripe for adjudication. The Democratic Alliance case already provides a useful blueprint for action, and the spirit and intent of S.R. No. 289–which a majority of the Senators already supports–already provides a platform from which the Senate as an institution can present a constitutional question before the Philippine Supreme Court. The United Nations Secretary General had already set March 17, 2019 as the end of the one year “transition” period for the Philippines’ final exit from the ICC (per Article 127 (1) of the Rome Statute). There is therefore a steadily-narrowing timeframe before questioning the constitutionality of President Duterte’s decision becomes moot.
*Ryan Hartzell C. Balisacan is a Graft Investigation and Prosecution Officer in the Office of the Ombudsman, the independent anti-corruption agency of the Philippines. He is a Lecturer at the University of the East College of Law (Manila, Philippines) and the University of the Philippines College of Law (Diliman, Quezon City, Philippines). He earned his master’s degree from Harvard Law School in May 2018.