SENATORS FRANCIS “KIKO” N. PANGILINAN, FRANKLIN M. DRILON, PAOLO BENIGNO “BAM” AQUINO IV, LEILA M. DE LIMA, RISA HONTIVEROS, AND ANTONIO ‘SONNY’ F. TRILLANES IV, PETITIONERS, VS…

Lantion discussed the
incorporation doctrine embodied in
Article II, Section 2 of the Constitution. Through incorporation, the
Philippines adopts international custom and general principle of law as
part of the law of the land. Lantion clarified that
despite being
part of the legal system, this “does not pertain to or imply the
primacy of international law over national or municipal law in the
municipal sphere.”^[190] However, it goes on to state that
“lex posterior derogat priori takes effect—a treaty
may repeal a statute and a statute may repeal a treaty.”^[191]

Previously, we have extensively discussed how,
despite being
both sources of international law, treaties must be distinguished from
generally accepted principles of international law. Article II, Section 2
automatically incorporates generally accepted
principles of
international law into the domestic sphere. On the other hand, Article
VII, Section 21 operates differently and concerns an entirely distinct
source of international law. It signifies that treaties and
international agreements are not automatically incorporated to the
Philippine legal system, but are transformed into
domestic law by Senate concurrence.

Thus, Lantion’s pronouncement
that—”lex posterior derogat priori takes effect—a
treaty may repeal a statute and a statute may repeal a treaty”^[192]—is misplaced and
unsupported by its internal logic. Its fallacy frustrates its viability
as precedent. Besides, it was mere obiter dictum
as this Court did not even rule on the constitutionality of the
assailed Republic of the Philippines-United States Extradition Treaty.

Courts, in which judicial power is vested, may void
executive and legislative acts when they violate the
Constitution.^[193]

The president is the head of state and chief
executive. The
Constitution mandates that in performing his or her functions, the
president must “ensure that the laws be faithfully executed.”^[194]
Thus, upon assuming office, a president swears to “faithfully and
conscientiously fulfill my duties. . . preserve and defend [the]
Constitution, execute. . . laws, do justice to every man, and consecrate
myself to the service of the Nation.”^[195]

Accordingly, in fulfilling his or her functions as
primary
architect of foreign policy, and in negotiating and enforcing treaties,
all of the president’s actions must always be within the bounds of the
Constitution and our laws. This mandate is exceeded when acting outside
what the Constitution or our laws allow. When any such excess is so
grave, whimsical, arbitrary, or attended by bad faith, it can be
invalidated through judicial review.

X

The Petitions here raise interesting legal
questions. However,
the factual backdrop of these consolidated cases renders inopportune a
ruling on the issues presented to this Court.

Separation of powers is fundamental in our legal
system. The
Constitution delineated the powers among the legislative, executive, and
judicial branches of the government, with each having autonomy and
supremacy within its own sphere.^[196]
This is moderated by a system of checks and balances “carefully
calibrated by the Constitution to temper the official acts” of each
branch.^[197]

Among the three branches, the judiciary was
designated as the arbiter in allocating constitutional
boundaries.^[198]
Judicial power is defined in Article VIII, Section 1 of the Constitution
as:

SECTION 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.

A plain reading of the Constitution identifies two instances
when judicial power is exercised: (1) in settling actual
controversies involving rights which are legally demandable
and enforceable; and (2) in determining whether or not there
has been a grave abuse of discretion amounting to a lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government.

In justifying judicial review in its traditional
sense, Justice Jose P. Laurel in Angara v. Electoral
Commission^[199]
underscored that when this Court allocates constitutional boundaries,
it neither asserts supremacy nor annuls the legislature’s acts. It
simply carries out the obligations that the Constitution imposed upon it
to determine conflicting claims and to establish the parties’ rights in
an actual controversy:

The Constitution is a definition of the powers of
government. Who
is to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in
what is termed “judicial supremacy” which properly is the power of
judicial review under the Constitution.^[200]

The latter conception of judicial power that jurisprudence
refers to as the “expanded certiorari jurisdiction”^[201] was an innovation of the 1987
Constitution:^[202]

This situation changed after 1987 when the new Constitution
“expanded” the scope of judicial power[.]

. . . .

In Francisco v. The House of
Representatives, we recognized
that this expanded jurisdiction was meant “to ensure the potency of the
power of judicial review to curb grave abuse of discretion by ‘any
branch or instrumentalities of government.”‘ Thus, the second paragraph
of Article VIII, Section 1 engraves, for the first time in its history,
into black letter law the “expanded certiorari jurisdiction” of this
Court, whose nature and purpose had been provided in the sponsorship
speech of its proponent, former Chief Justice Constitutional
Commissioner Roberto Concepcion.

. . . .

Meanwhile that no specific procedural rule has been
promulgated to
enforce this “expanded” constitutional definition of judicial power and
because of the commonality of “grave abuse of discretion” as a ground
for review under Rule 65 and the courts’ expanded jurisdiction, the
Supreme Court based on its power to relax its rules allowed Rule 65 to
be used as the medium for petitions invoking the courts’ expanded
jurisdiction based on its power to relax its Rules. This is however an
ad hoc approach that does not fully consider the accompanying
implications, among them, that Rule 65 is an essentially distinct remedy
that cannot simply be bodily lifted for application under the judicial
power’s expanded mode. The terms of Rule 65, too, are not fully aligned
with what the Court’s expanded jurisdiction signifies and requires.

On the basis of almost thirty years’ experience with the
courts’
expanded jurisdiction, the Court should now fully recognize the
attendant distinctions and should be aware that the continued use of
Rule 65 on an ad hoc basis as the operational remedy in implementing its
expanded jurisdiction may, in the longer term, result in problems of
uneven, misguided, or even incorrect application of the courts’ expanded
mandate.^[203]

Tañada v. Angara^[204] characterized this not only as a
power, but as a duty ordained by the Constitution:

It is an innovation in our political law. As explained by
former
Chief Justice Roberto Concepcion, “the judiciary is the final arbiter on
the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or
so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature ”

As this Court has repeatedly and firmly emphasized in many
cases,
it will not shirk, digress from or abandon its sacred duty and authority
to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality or department of the government.^[205] (Emphasis supplied,
citations omitted)

Despite its expansion, judicial review has its limits. In
deciding
matters involving grave abuse of discretion, courts cannot brush aside
the requisite of an actual case or controversy. The clause articulating
expanded certiorari jurisdiction requires a prima
facie showing
of grave abuse of discretion in the assailed governmental act which, in
essence, is the actual case or controversy. Thus, “even now, under the
regime of the textually broadened power of judicial review articulated
in Article VIII, Section 1 of the 1987 Constitution, the requirement of
an actual case or controversy is not dispensed with.”^[206]

In Provincial Bus Operators Association of
the Philippines v. Department of Labor and Employment:^[207]

An actual case or controversy is “one which involves a
conflict of
legal rights, an assertion of opposite legal claims susceptible of
judicial resolution.” A case is justiciable if the issues presented are
“definite and concrete, touching on the legal relations of parties
having adverse legal interests.” The conflict must be ripe for judicial
determination, not conjectural or anticipatory; otherwise, this Court’s
decision will amount to an advisory opinion concerning legislative or
executive action.

. . . .

Even the expanded jurisdiction of this Court under Article
VIII,
Section 1 does not provide license to provide advisory opinions. An
advisory opinion is one where the factual setting is conjectural or
hypothetical. In such cases, the conflict will not have sufficient
concreteness or adversariness so as to constrain the discretion of this
Court. After all, legal arguments from concretely lived facts are chosen
narrowly by the parties. Those who bring theoretical cases will have no
such limits. They can argue up to the level of absurdity. They will
bind the future parties who may have more motives to choose specific
legal arguments. In other words, for there to be a real conflict between
the parties, there must exist actual facts from which courts can
properly determine whether there has been a breach of constitutional
text.^[208]

Thus, whether in its traditional or expanded scope, the
exercise of
judicial review requires the concurrence of these requisites for
justiciability:

(a) there must be an actual case or controversy calling for
the
exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance . .
. ; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the
very lis mota of the case.^[209] (Citations omitted)

XI

The Petitions are moot. They fail to present a
persisting case or controversy that impels this Court’s review.

In resolving constitutional issues, there must be an
“existing
case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory.”^[210]

An actual case deals with conflicting rights that
are legally
demandable and enforceable. It involves definite facts and incidents to
be appreciated, and laws to be applied, interpreted and enforced
vis-à-vis ascertained facts. It must be “definite and concrete, touching
the legal relations of parties having adverse legal interest; a real
and substantial controversy admitting of specific relief.”^[211]

A constitutional question may not be presented to
this Court at
an inopportune time. When it is premature, this Court’s ruling shall be
relegated as an advisory opinion for a potential, future occurrence.
When belated, concerning matters that are moot, the decision will no
longer affect the parties.

Either way, courts must avoid resolving hypothetical
problems or
academic questions. This exercise of judicial restraint ensures that
the judiciary will not encroach on the powers of other branches of
government. As Angara v. Electoral Commission^[212] explained:

[T]his power of judicial review is limited to actual cases
and
controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at
abstraction could
only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive
and legislative departments of the government.^[213]

The requirement of a bona fide controversy precludes advisory
opinions and judicial legislation. For this Court, “only constitutional
issues that are narrowly framed, sufficient to resolve an actual case,
may be entertained,”^[214] and only when they are raised at the opportune
time.

A case is moot when it “ceases to present a
justiciable
controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value.”^[215]
There may have been conflicting rights, disputed facts, or meritorious
claims warranting this Court’s intervention, but a supervening event
rendered the issue stale. In Peñafrancia Sugar Mill, Inc. v.
Sugar Regulatory Administration:^[216]

A case or issue is considered moot and academic when it
ceases to
present a justiciable controversy by virtue of supervening events, so
that an adjudication of the case or a declaration on the issue would be
of no practical value or use. In such instance, there is no actual
substantial relief which a petitioner would be entitled to, and which
would be negated by the dismissal of the petition. Courts generally
decline jurisdiction over such case or dismiss it on the ground of
mootness. This is because the judgment will not serve any useful purpose
or have any practical legal effect because, in the nature of things, it
cannot be enforced.^[217] (Citations omitted)

On March 19, 2019, the International Criminal Court itself,
through
Mr. O-Gon Kwon, the president of the Assembly of States Parties,
announced the Philippines’ departure from the Rome Statute effective
March 17, 2019. It made this declaration with regret and the hope that
such departure “is only temporary and that it will re-join the Rome
Statute family in the future.”^[218]

This declaration, coming from the International
Court itself,
settles any doubt on whether there are lingering factual occurrences
that may be adjudicated. No longer is there an unsettled incident
demanding resolution. Any discussion on the Philippines’ withdrawal is,
at this juncture, merely a matter of theory.

However, even prior to the filing of these
Petitions,^[219]
the President had already completed the irreversible act of withdrawing
from the Rome Statute.

To reiterate, Article 127(1) of the Rome Statute
provides the mechanism on how its state parties may withdraw:

A State Party may, by written notification addressed to the
Secretary-General of the United Nations, withdraw from this Statute. The
withdrawal shall take effect one year after the date of receipt of the
notification, unless the notification specifies a later date.

The Philippines announced its withdrawal
from the Rome Statute
on March 15, 2018, and formally submitted its Notice of Withdrawal
through a Note Verbale to the United Nations Secretary-General’s Chef de
Cabinet on March 16, 2018. The Secretary-General received the
notification on March 17, 2018. For all intents and purposes, and in
keeping with what the Rome Statute plainly requires, the Philippines
had, by then, completed all the requisite acts of withdrawal. The
Philippines has done all that were needed to facilitate the withdrawal.
Any subsequent discussion would pertain to matters that are fait
accompli.

On March 20, 2018, the International Criminal Court
issued a
statement on the Philippines’ Notice of Withdrawal. The United Nations
certified that the Philippines deposited the written notification on
March 17, 2018. It stressed that while withdrawal from the Rome Statute
is a sovereign decision, it has no impact on any pending
proceedings.^[220]
In any case, the International Criminal Court expressed no reservation
on the efficacy of the withdrawal.

At that point, this Court’s interference and ruling
on what
course of action to take would mean an imposition of its will not only
on the executive, but also on the International Criminal Court itself.
That is not the function of this Court, which takes on a passive role in
resolving actual controversies when proper parties raise them at an
opportune time. In the international arena, it is the president that has
the authority to conduct foreign relations and represent the country.
This Court cannot encroach on matters beyond its jurisdiction.

Moreover, while its text provides a mechanism on how
to withdraw
from it, the Rome Statute does not have any proviso on the reversal of a
state party’s withdrawal. We fail to see how this Court can revoke—as
what petitioners are in effect asking us to do—the country’s withdrawal
from the Rome Statute, without writing new terms into the Rome Statute.

Petitioners harp on the withdrawal’s effectivity,
which was one
year from the United Nations Secretary-General’s receipt of the
notification. However, this one-year period only pertains to the
effectivity,
or when exactly the legal consequences of the withdrawal takes effect.
It neither concerns approval nor finality of the withdrawal.
Parenthetically, this one-year period does not undermine or diminish the
International Criminal Court’s jurisdiction and power to continue a
probe that it has commenced while a state was a party to the Rome
Statute.

Here, the withdrawal has been communicated and
accepted, and
there are no means to retract it. This Court cannot extend the reliefs
that petitioners seek. The Philippines’s withdrawal from the Rome
Statute has been properly received and acknowledged by the United
Nations Secretary-General, and has taken effect. These are all that the
Rome Statute entails, and these are all that the international community
would require for a valid withdrawal. Having been consummated, these
actions bind the Philippines.

In G.R. No. 238875, petitioners posit:

If the Executive can unilaterally withdraw from any treaty
or
international agreement, he is in a position to abrogate some of the
basic norms in our legal system. Thus, the Executive can unilaterally
withdraw from the International Covenant on Civil and Political Rights,
the Geneva Conventions[,] and the United Nations Convention on the Law
of the Sea, without any checking mechanism from Congress. This would be
an undemocratic concentration of power in the Executive that could not
have been contemplated by the Constitution.^[221]

We reiterate that courts may only rule on an actual case. This
Court
has no jurisdiction to rule on matters that are abstract, hypothetical,
or merely potential. Petitioners’ fear that the President may
unilaterally withdraw from other treaties has not transpired and cannot
be taken cognizance of by this Court in this case. We have the duty to
determine when we should stay our hand, and refuse to rule on cases
where the issues are speculative and theoretical, and consequently, not
justiciable.^[222]

Legislative and executive powers impel the concerned
branches of
government into assuming a more proactive role in our constitutional
order. Judicial power, on the other hand, limits this Court into taking a
passive stance. Such is the consequence of separation of powers. Until
an actual case is brought before us by the proper parties at the
opportune time, where the constitutional question is the very
lis mota, we cannot act on an issue, no matter how
much it agonizes us.

XII

Parties have standing if they
stand to be benefited if
the case is resolved in their favor, or if they shall suffer should the
case be decided against them.^[223]

In Falcis III v. Civil Registrar
General,^[224] this Court explained:

Much like the requirement of an actual case or controversy,
legal
standing ensures that a party is seeking a concrete outcome or relief
that may be granted by courts:

Legal standing or locus standi is the
“right of
appearance in a court of justice on a given question.” To possess legal
standing, parties must show “a personal and substantial interest in the
case such that [they have] sustained or will sustain direct injury as a
result of the governmental act that is being challenged.” The
requirement of direct injury guarantees that the party who brings suit
has such personal stake in the outcome of the controversy and, in
effect, assures “that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions.”

The requirements of legal standing and the recently
discussed
actual case and controversy are both “built on the principle of
separation of powers, sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.” In addition, economic reasons justify
the rule. Thus:

A lesser but not insignificant reason for screening the
standing
of persons who desire to litigate constitutional issues is economic in
character. Given the sparseness of our resources, the capacity of courts
to render efficient judicial service to our people is severely limited.
For courts to indiscriminately open their doors to all types of suits
and suitors is for them to unduly overburden their dockets, and
ultimately render themselves ineffective dispensers of justice. To be
sure, this is an evil that clearly confronts our judiciary today.

Standing in private suits requires that actions be
prosecuted or
defended m the name of the real party-in-interest, interest being
“material interest or an interest in issue to be affected by the decree
or judgment of the case[,] [not just] mere curiosity about the question
involved.” Whether a suit is public or private, the parties must have “a
present substantial interest,” not a “mere expectancy or a future,
contingent, subordinate, or consequential interest.” Those who bring the
suit must possess their own right to the relief sought. . . .

Even for exceptional suits filed by taxpayers, legislators,
or
concerned citizens, this Court has noted that the party must claim some
kind of injury-in-fact.^[225] (Citations omitted)

In G.R. No. 238875, petitioners-senators were then incumbent
minority senators who allege that the Senate’s constitutional
prerogative to concur in the government’s decision to withdraw from the
Rome Statute has been impaired. They add that they were likewise suing
as citizens, as this case allegedly involves a “public right and its
object . . . is to procure the enforcement of a public duty.”^[226]

Petitioners-senators also claim that the issue has
transcendental importance, which may potentially impact constitutional
checks and balances, our domestic legal system, and the country’s
relations with the international community.^[227]

In G.R. No. 239483, petitioner Philippine Coalition
for the
International Criminal Court and its individual members assert that, as
Philippine citizens and as human beings, they have rights to life and
personal security. The withdrawal from the Rome Statute, they claim,
violates their rights to ample remedies for the protection of their
rights, “and of their other fundamental rights especially the right to
life.”^[228]

They likewise contend that their Petition is a
taxpayers’ suit,
since the executive department spent substantial taxpayer’s money in
attending negotiations and in participating in the drafting of what
would be the Rome Statute.^[229]

In G.R. No. 240954, the Integrated Bar of the
Philippines comes
to this Court on essentially the same ground: as a group of concerned
citizens, it invokes its members’ right to life and due process that may
be affected by the withdrawal. Additionally, it claims that as a body
that aims to uphold the rule of law, it has standing to the question
whether the withdrawal was proper.^[230]

Jurisprudence has consistently recognized each
legislator’s
individual standing and prerogative independent of the House of
Representatives or the Senate as a collegial body.^[231]
A legislator’s individual standing and prerogative remains and is not
abandoned in this case. However, the precise circumstances here subvert
the otherwise generally recognized standing which anchors the individual
legislators’ capacity to seek relief. Here, the Senate’s inaction makes
premature petitioners-senators’ capacity to seek relief. The Senate’s
institutional reticence subverts the capacities otherwise properly
accruing to petitioners-senators.

The Senate has refrained from passing a resolution
indicating
that its assent should have been obtained in withdrawing from the Rome
Statute. Senate Resolution No. 289,^[232]
or the “Resolution 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,” has been presented to but, thus far, never adopted by the
Senate.

During the September 4, 2018 oral arguments,
petitioner Senator
Pangilinan himself manifested the resolution’s pendency, which he
claimed was “not rejected . . . but was not calendared for
adoption.”^[233]
Thus, Senate Resolution No. 289 has absolutely no legal effect. 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 passage of Resolution No. 289 would have been a
definite
basis on which petitioners-senators can claim a right. However, the
Senate itself appears to have not seen the need for it. Thus,
petitioners-senators cannot validly come to this Court with a case that
is already foreclosed by their own institution’s inaction.

Moreover, as discussed, petitioner Senator
Pangilinan mentioned
during oral arguments that the Senate has passed 17 resolutions
concurring on different treaties, each of which came with a clause that
specifically required its concurrence for withdrawal.^[234] In contrast, no
similar clause was contained in Senate Resolution No. 546,^[235]
through which the Senate ratified the Rome Statute. Thus, the Senate’s
inaction itself precludes a source from which petitioners-senators could
claim a right to require Senate concurrence to withdrawing from the
Rome Statute.

Incidentally, in Goldwater, the
United States Supreme
Court also declined to rule on the substance of the case. There, then
Senator Barry Goldwater and other Congress members assailed then
President Carter’s unilateral nullification of the Sino-American Mutual
Defense Treaty, claiming that this should have required Senate
concurrence. However, Congress had not formally taken a stance contrary
to the president’s action through any resolution. There was a draft
Senate resolution, but no vote was taken on it.^[236] Justice Powell noted:

This Court has recognized that an issue should not be
decided if
it is not ripe for judicial review Prudential considerations persuade me
that a dispute between Congress and the President is not ready for
judicial review unless and until each branch has taken action asserting
its constitutional authority. Differences between the President and the
Congress are commonplace under our system. The differences should, and
almost invariably do, turn on political, rather than legal,
considerations. The Judicial Branch should not decide issues
affecting the allocation of power between the President and Congress
until the political branches reach a constitutional
impasse.
Otherwise, we would encourage small groups, or even individual Members,
of Congress to seek judicial resolution of issues before the normal
political process has the opportunity to resolve the conflict.

In this case, a few Members of Congress claim that the
President’s
action in terminating the treaty with Taiwan has deprived them of their
constitutional role with respect to a change in the supreme law of the
land. Congress has taken no official action. In the
present
posture of this case, we do not know whether there ever will be an
actual confrontation between the Legislative and Executive Branches.
Although the Senate has considered a resolution declaring that Senate
approval is necessary for the termination of any mutual defense treaty,
no final vote has been taken on the resolution. Moreover, it is unclear
whether the resolution would have retroactive effect. It cannot be said
that either the Senate or the House has rejected the President’s claim.
If the Congress chooses not to confront the President, it is not our
task to do so.^[237] (Emphasis supplied, citations omitted)

Similarly, this Court should stay its hand when the Senate
itself,
as a collegial body, has not officially confronted the President’s act.
This is in keeping with the limits of judicial review.

On the other hand, persons invoking their rights as
citizens
must satisfy the following requisites to file a suit: (1) they must have
“personally suffered some actual or threatened injury as a result of
the allegedly illegal conduct of government”; (2) “the injury is fairly
traceable to the challenged action”; and (3) “the injury is likely to be
redressed by a favorable action.”^[238]

In G.R. Nos. 239483 and 240954, what petitioners
assail is an
act of the President, in the exercise of his executive power. They
failed to show the actual or imminent injury that they sustained as a
result of the President’s withdrawal from the Rome Statute. Again,
“whether a suit is public or private, the parties must have ‘a present
substantial interest,’ not a ‘mere expectancy or a future, contingent,
subordinate, or consequential interest.”‘^[239]

Similarly, petitioners have no standing as
taxpayers. In cases
involving expenditure of public funds, also known as a taxpayer’s suit,
“there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional[.]”^[240]

Petitioners here failed to show any illegal
expenditure of
public funds. To allow these petitioners who suffer no injury to invoke
this Court’s discretion would be to allow everyone to come to courts on
the flimsiest of grounds.

Parties must possess their own right to the relief
sought, and a
general invocation of citizen’s or a taxpayer’s rights is insufficient.
This Court must not indiscriminately open its doors to every person
urging it to take cognizance of a case where they have no demonstrable
injury. This may ultimately render this Court ineffective to dispense
justice as cases clog its docket.^[241]

This Court has also recognized that an association
may file
petitions on behalf of its members on the basis of third party standing.
However, to do so, the association must meet the following
requirements: (1) “the [party bringing suit] must have suffered an
‘injury-in-fact,’ thus giving [it] a ‘sufficiently concrete interest” in
the outcome of the issue in dispute”; (2) “the party must have a close
relation to the third party”; and (3) “there must exist some hindrance
to the third party’s ability to protect his or her own
interests.”^[242]

In Pharmaceutical and Health Care
Association of the Philippines v. Secretary of Health,^[243]
this Court found that an association “has the legal personality to
represent its members because the results of the case will affect their
vital interests”:^[244]

The modern view. . . . fuses the legal identity of an
association
with that of its members. An association has standing to file suit for
its workers despite its lack of direct interest if its members are
affected by the action. An organization has standing to assert the
concerns of its constituents.

. . . .

We note that, under its Articles of Incorporation, the
respondent
was organized … to act as the representative of any individual,
company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary
to accomplish the purposes embodied therein. The respondent is, thus,
the appropriate party to assert the rights of its members, because it
and its members are in every practical sense identical. . . The
respondent [association] is but the medium through which its individual
members seek to make more effective the expression of their voices and
the redress of their grievances.^[245]

In Provincial Bus Operators Association of the
Philippines,^[246]
this Court did not allow the association of bus operators to represent
its members. There were no board resolutions or articles of
incorporation presented to show that it was authorized to file the
petition on the members’ behalf. Some of the associations even had their
certificates of incorporation revoked. This Court ruled that it is
insufficient to simply allege that the petitioners are associations that
represent their members who will be directly injured by the
implementation of a law:

The associations in Pharmaceutical and Health Care
Association of the Philippines, Holy Spirit Homeowners Association,
Inc., and The Executive Secretary
were allowed to sue on behalf of their members because they
sufficiently established who their members were, that their members
authorized the associations to sue on their behalf, and that the members
would be directly injured by the challenged governmental acts.

The liberality of this Court to grant standing for
associations or
corporations whose members are those who suffer direct and substantial
injury depends on a few factors.

In all these cases, there must be an actual
controversy. Furthermore, there should also be a
clear and convincing demonstration of special reasons why the
truly injured parties may not be able to sue.

Alternatively, there must be a similarly clear and
convincing
demonstration that the representation of the association is more
efficient for the petitioners to bring. They must further show that it
is more efficient for this Court to hear only one voice from the
association. In other words, the association should show special reasons
for bringing the action themselves rather than as a class suit, allowed
when the subject matter of the controversy is one of common or general
interest to many persons. In a class suit, a number of the members of
the class are permitted to sue and to defend for the benefit of all the
members so long as they are sufficiently numerous and representative of
the class to which they belong.

In some circumstances similar to those in White
Light, the
third parties represented by the petitioner would have special and
legitimate reasons why they may not bring the action themselves.
Understandably, the cost to patrons in the White
Light case to
bring the action themselves—i.e., the amount they would pay for the
lease of the motels—will be too small compared with the cost of the
suit. But viewed in another way, whoever among the patrons files the
case even for its transcendental interest endows benefits on a
substantial number of interested parties without recovering their costs.
This is the free rider problem in economics. It is a negative
externality which operates as a disincentive to sue and assert a
transcendental right.^[247] (Citation omitted, emphasis supplied)

Here, both petitioners-associations, the Integrated Bar of the

Philippines and the Philippine Coalition for the International Criminal
Court, failed to convince this Court why they must be heard as
associations. Advocating human rights as an institution is insufficient.
No special reason was alleged, let alone proved, why its allegedly
injured members may not file the case themselves.

Worse, the members of the Philippine Coalition for
the
International Criminal Court joined the case as petitioners, albeit
likewise failing to exhibit actual or imminent injury from which they
stand to suffer.

XIII

Transcendental importance is often invoked in
instances when the
petitioners fail to establish standing in accordance with customary
requirements. However, its general invocation cannot negate the
requirement of locus standi. Facts must be
undisputed, only legal
issues must be present: and proper and sufficient justifications why
this Court should not simply stay its hand must be clear.

Falcis explained:

Diocese of Bacolod recognized
transcendental importance as
an exception to the doctrine of hierarchy of courts. In cases of
transcendental importance, imminent and clear threats to constitutional
rights warrant a direct resort to this Court. This was clarified in
Gios-Samar.
There, this Court emphasized that transcendental importance —
originally cited to relax rules on legal standing and not as an
exception to the doctrine of hierarchy of courts — applies only to cases
with purely legal issues. We explained that the decisive factor in
whether this Court should permit the invocation of transcendental
importance is not merely the presence of “special and important
reason[,]” but the nature of the question presented by the parties. This
Court declared that there must be no disputed facts, and the issues
raised should only be questions of law:

[W]hen a question before the Court involves determination
of a
factual issue indispensable to the resolution of the legal issue, the
Court will refuse to resolve the question regardless of the allegation
or invocation of compelling reasons, such as the transcendental or
paramount importance of the case. Such question must first be brought
before the proper trial courts or the CA, both of which are specially
equipped to try and resolve factual questions.

Still, it does not follow that this Court should proceed to
exercise its power of judicial review just because a case is attended
with purely legal issues. Jurisdiction ought to be distinguished from
justiciability. Jurisdiction pertains to competence “to hear, try[,] and
decide a case.” On the other hand,

[d]etermining whether the case, or any of the issues
raised, is
justiciable is an exercise of the power granted to a court with
jurisdiction over a case that involves constitutional adjudication.
Thus, even if this Court has jurisdiction, the canons of constitutional
adjudication in our jurisdiction allow us to disregard the questions
raised at our discretion.

Appraising justiciability is typified by constitutional
avoidance.
This remains a matter of enabling this Court to act in keeping with its
capabilities. Matters of policy are properly left to government organs
that are better equipped at framing them. Justiciability demands that
issues and judicial pronouncements be properly framed in relation to
established facts:

Angara v. Electoral Commission imbues these rules with its
libertarian character. Principally, Angara
emphasized the liberal deference to another constitutional department
or organ given the majoritarian and representative character of the
political deliberations in their forums. It is not merely a judicial
stance dictated by courtesy, but is rooted on the very nature of this
Court. Unless congealed in constitutional or statutory text and
imperatively called for by the actual and non-controversial facts of the
case, this Court does not express policy. This Court should channel
democratic deliberation where it should take place.

. . . .

Judicial restraint is also founded on a policy of
conscious and
deliberate caution. This Court should refrain from speculating on the
facts of a case and should allow parties to shape their case instead.
Likewise, this Court should avoid projecting hypothetica.l situations
where none of the parties can fully argue simply because they have not
established the facts or are not interested in the issues raised by the
hypothetical situations. In a way, courts are mandated to adopt an
attitude of judicial skepticism. What we think may be happening may not
at all be the case. Therefore, this Court should always await the proper
case to be properly pleaded and proved.

Thus, concerning the extent to which transcendental
importance
carves exceptions to the requirements of justiciability, “[t]he elements
supported by the facts of an actual case, and the imperatives of our
role as the Supreme Court within a specific cultural or historic
context, must be made clear”:

They should be properly pleaded by the petitioner so that
whether there is any transcendental importance to a case is made an
issue. That a case has transcendental importance, as applied, may have
been too ambiguous and subjective that it undermines the structural
relationship that this Court has with the sovereign people and other
departments under the Constitution. Our rules on jurisdiction and our
interpretation of what is justiciable, refined with relevant cases, may
be enough.

Otherwise, this Court would cede
unfettered prerogative on
parties. It would enable the parties to impose their own determination
of what issues are of paramount; national significance, warranting
immediate attention by the highest court of the
land.^[248] (Emphasis supplied, citations omitted)

Chamber of Real Estate and Builders’ Associations,
Inc. v. Energy Regulatory Commission^[249] lists the following considerations
to determine whether an issue is of transcendental importance:

(1) the character of the funds or other assets involved in
the
case; (2) the presence of a clear case of disregard of a constitutional
or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party
with a more direct and specific interest in the questions being
raised.^[250]
(Citation omitted)

Here, all petitioners invoked the supposed transcendental
importance
of the constitutional issues. However, none of the exceptional
conditions warranting the exercise of this Court’s jurisdiction is
present here. This case does not involve funds or assets. Neither was
there any express disregard of a constitutional or statutory
prohibition. Petitioners also failed to show that no other party has a
more direct, personal, and material interest. Petitioners failed to
invoke any source of right to bring these Petitions.

This Court is competent to decide legal principles
only in
properly justiciable cases. That a party must have standing in court is
not a mere technical rule that may easily be waived. Courts should be
scrupulous in protecting the principles of justiciability, or else their
legitimacy may be undermined.^[251]
Transcendental importance of issues excusing requisite standing should
not be so recklessly invoked, and is justified only in extraordinary
circumstances.

The alleged transcendental importance of the issues
raised here
will be better served when there are actual cases with the proper
parties suffering an actual or imminent injury. No injury so great and
so imminent was shown here, such that this Court cannot instead
adjudicate on the occasion of an appropriate case.

XIV

The writ of certiorari which may be issued under
Rule 65 of the
Rules of Court must be distinguished from the writ of certiorari that
may be issued pursuant to the “expanded certiorari jurisdiction”^[252] under Article VIII,
Section 1, paragraph 2 of the 1987 Constitution.^[253]
The latter is a remedy for breaches of constitutional rights by any
branch or instrumentality of the government. Meanwhile, the special
civil action under Rule 65 is limited to a review of judicial and
quasi-judicial acts. The following summarizes the distinctions between
the two avenues for certiorari:

	Certiorari under Rule 65	Expanded Certiorari
Basis	Rule 65 of the Rules of Court	Article VIII, Section 1, paragraph 2 of the Constitution
Assailed act	without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction	grave abuse of discretion amounting to lack or excess of jurisdiction
By whom	any tribunal, board or officer exercising judicial or quasi-judicial functions	any branch or instrumentality of the government
Other requisites	there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law

While these two avenues are distinct, this Court has allowed—in
view
of its power to relax its rules of procedure—recourse to petitions for
certiorari under Rule 65 to enable reliefs that invoke expanded
certiorari jurisdiction.^[254]

Regardless, “the expansion of this Court’s judicial power is
by no
means an abandonment of the need to satisfy the basic requisites of
justiciability.”^[255]
Ultimately, the nature of judicial power means that this Court is
competent to decide legal principles only when there is an actual case
brought by the proper parties who suffer direct, material, and
substantial injury.

XV

The special civil actions of petitions for
certiorari and mandamus cannot afford petitioners the reliefs they seek.

Rule 65 petitions are not per se remedies to resolve

constitutional issues. Instead, they “are filed to address the
jurisdictional excesses of officers or bodies exercising judicial or
quasi-judicial functions.”^[256] Rule 65, Section 1 of the Rules of Court
provides:

SECTION 1. Petition for certiorari. —
When any tribunal,
board or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

The petition shall be accompanied by a certified true copy
of the
judgment, order or resolution subject thereof, copies of all pleadings
and documents relevant and pertinent thereto, and a sworn certification
of non-forum shopping as provided in the third paragraph of section 3,
Rule 46. (1a)

The petition shall also contain a sworn certification of
non-forum
shopping as provided in the third paragraph of section 3, Rule 46. (3a)

A petition for certiorari under Rule 65 will prosper only when
the
following requisites are present (1) the writ “must be directed against a
tribunal, a board, or officer exercising judicial or quasi-judicial
functions”; (2) “the tribunal, board, or officer must have acted without
or in excess of jurisdiction or with grave abuse of discretion”; and
(3) “there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law.”^[257]

Not every instance of abuse of discretion should lead this
Court to
exercise its power of judicial review. The abuse of discretion must be
grave, amounting to a lack or excess of jurisdiction. Sinon v.
Civil Service Commission^[258] explains:

By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction.
The abuse of discretion must be patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility.^[259]
(Citation omitted)

A writ of certiorari is unavailing here. The assailed
government act
is the President’s withdrawal from the Rome Statute. This, by any
stretch of the imagination, may not be considered an exercise of
judicial or quasi-judicial power.

A political question exists when the issue does not
call on this
Court to determine legality and adjudicate, but to interpret the wisdom
of a law or an act.^[260] It
has been defined as a question “which, under the Constitution, [is] to
be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature
or executive branch of the Government.”^[261]

In Integrated Bar of the Philippines v.
Zamora:^[262]

One class of cases wherein the Court hesitates to rule on
are
“political questions.” The reason is that political questions are
concerned with issues dependent upon the wisdom not the legality, of a
particular act or measure being assailed. Moreover, the political
question being a function of the separation of powers, the courts will
not normally interfere with the workings of another co-equal branch
unless the case shows a clear need for the courts to step in to uphold
the law and the Constitution.

. . . In the classic formulation of Justice Brennan in
Baker v. Carr,
prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on the one question.^[263] (Citation omitted)

Courts cannot resolve a political question. It is not within
the
purview of judicial functions, and must be left to the sound discretion
of the political agents—the executive or the legislature.

It is true that we have previously said that it is
wrong to
mistake matters of foreign relations as political questions, which are
completely beyond the reach of judicial review. Nevertheless, generally,
the pursuit of foreign relations is in the executive domain, and thus,
pertains to the president,^[264] the primary architect of foreign policy. As
explained in Bayan v. Zamora:^[265]

By constitutional fiat and by the intrinsic nature of his
office,
the President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation’s foreign policy, his “dominance in the
field of foreign relations is then conceded.” Wielding vast powers and
influence, his conduct in the external affairs of the nation . . . is
“executive altogether.”^[266] (Citations omitted)

Between the executive and this Court, it is the executive that

represents the Philippines in the international sphere. This Court
interprets laws hut its determinations are effective only within the
bounds of Philippine jurisdiction. Even within these bounds, this Court
must caution itself in interpreting the Constitution and our laws, for
it can undermine the discretion of the political agencies. This Court’s
mandate is clear: it is the presence of grave abuse of discretion that
sanctions us to act. It is not merely discretion, but
abuse of that discretion; and it is not only abuse of
discretion, but grave abuse of discretion.

The President’s withdrawal from the Rome Statute was
in
accordance with the mechanism provided in the treaty. The Rome Statute
itself contemplated and enabled a State Party’s withdrawal. A state
party and its agents cannot be faulted for merely acting within what the
Rome Statute expressly allows.

As far as established facts go, all there is for
this Court to
rely on are the manifest actions of the executive, 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.

Were the situation different—where it is shown that
the
President’s exercise of discretion ran afoul of established procedure;
or was done in manifest disregard of previously declared periods for
rectification, terms, guidelines, or injunctions, belying any rhyme or
reason in the course of action hastily and haphazardly taken; or was
borne out of vindictiveness, as retaliation, merely out of personal
motives, to please personal tastes or to placate personal perceived
injuries—whimsical and arbitrary exercise of discretion may be
appreciated, impelling this Court to rule on the substance of petitions
and grant the reliefs sought.

XVI

Rule 65, Section 3 of the Rules of Court provides:

SECTION 3. Petition for mandamus. — When
any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may
tile a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason
of the wrongful acts of the respondent.

Lihaylihay v. Treasurer of the
Philippines^[267] discussed the requisites for the issuance of a
writ of mandamus:

A writ of mandamus may issue in either of two (2)
situations:
first, “when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which
the law
specifically enjoins as a duty resulting from an office, trust, or
station”; second, “when any tribunal, corporation, board, officer or
person . . . unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled.”

The first situation demands a concurrence between a clear
legal
right accruing to petitioner and a correlative duty incumbent upon
respondents to perform an act, this duty being imposed upon them by law.

Petitioner’s legal right must have already been clearly
established. It cannot be a prospective entitlement that is yet to be
settled. In Lim Tay v. Court of Appeals, this Court
emphasized
that “[m]andamus will not issue to establish a right, but only to
enforce one that is already established.” In Pefianco v.
Moral, this Court underscored that a writ of mandamus “never
issues in doubtful cases.”

Respondents must also be shown to have
actually neglected
to perform the act mandated by law. Clear in the text of Rule 65,
Section 3 is the requirement that respondents “unlawfully
neglect” the performance of a duty. The mere
existence of a legally mandated duty or the pendency of its performance
does not suffice.

The duty subject of mandamus must be ministerial rather than

discretionary. A court cannot subvert legally vested authority for a
body or officer to exercise discretion. In Sy Ha v.
Galang:

[M]andamus will not issue to control the exercise of
discretion
of a public officer where the law imposes upon him the duty to exercise
his judgment in reference to any matter in which he is required to act,
because it is his judgment that is to be exercised and not that of the
court.

This Court distinguished discretionary functions from
ministerial
duties, and related the exercise of discretion to judicial and
quasi-judicial powers. In Samson v. Barrios:

Discretion, when applied to public functionaries, means a
power
or right conferred upon them by law of acting officially, under certain
circumstances, according to the dictates of their own judgments and
consciences, uncontrolled by the judgments or consciences of others. A
purely ministerial act or duty, in contradistinction to a discretional
act, is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of legal
authority, without regard to or the exercise of his own judgment, upon
the propriety or impropriety of the act done. If the law imposes a duty
upon a public officer, and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the same
requires neither the exercise of official discretion nor judgment. . . .
Mandamus will not lie to control the exercise of discretion of an
inferior tribunal . . . , when the act complained of is either judicial
or quasi-judicial. . . . It is the proper remedy when the case presented
is outside of the exercise of judicial discretion. . . .

Mandamus, too, will not issue unless it is shown that “there
is no
other plain, speedy and adequate remedy in the ordinary course of law.”
This is a requirement basic to all remedies under Rule 65, i.e.,
certiorari, prohibition, and mandamus.^[268] (Emphasis supplied, citations omitted)

A writ of mandamus lies to compel the performance of duties
that are
purely ministerial, and not those that are discretionary. Petitioners
must show that they have a clear legal right and that there was a
neglected duty which was incumbent upon the public officer.

Here, however, there is no showing that the
President has the
ministerial duty imposed by law to retract his withdrawal from the Rome
Statute. Certainly, there is no constitutional or statutory provision
granting petitioners the right to compel the executive to withdraw from
any treaty. It was discretionary upon the President, as primary
architect of our foreign policy, to perform the assailed act.

Moreover, issuing a writ of mandamus will not
ipso facto restore
the Philippines to membership in the International Criminal Court. No
provision in the Rome Statute directs how a state party may reverse its
withdrawal from the treaty. It cannot be guaranteed that the Note
Verbale’s depositary, the United Nations Secretary-General, will assent
to this Court’s compulsion to reverse the country’s withdrawal.

This Court is not an international court. It may
only rule on
the effect of international law on the domestic sphere. What is within
its purview is not the effectivity of laws among states, but the effect
of international law on the Constitution and our municipal laws. Not
only do petitioners pray for a relief directed at a discretionary
function, but the relief they seek through this Court’s finite authority
is ineffectual and futile. Ultimately, mandamus will not lie.

XVII

Pacta sunt servanda is a
generally accepted principle of
international law that preserves the sanctity of treaties. This
principle is expressed in Article 26 of the Vienna Convention:

Article 26

“Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.

A supplementary provision is found in Article 46:

Article 46
Provisions of internal law regarding
competence to conclude treaties

1. A State may not invoke the fact that its consent to be
bound by
a treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of its
internal law of fundamental importance.

2. A violation is manifest if it would be objectively
evident to
any State conducting itself in the matter in accordance with normal
practice and in good faith.

A state party may not invoke the provisions of its internal
law to
justify its failure to perform a treaty. Under international law, we
cannot plead our own laws to excuse our noncompliance with our
obligations.

The March 15, 2018 Note Verbale submitted by the
Department of
Foreign Affairs, through our Ambassador to the United Nations, partly
reads:

The Government of the Republic of the Philippines has the
honor to
inform the Secretary-General, in his capacity as depositary of the Rome
Statute of the International Criminal Court, of its decision to
withdraw from the Rome Statute of the International Criminal Court
in accordance with the relevant provisions of the
Statute.

The Philippines assures the community of nations that the
Philippine Government continues to be guided by the rule of law embodied
in its Constitution, which also enshrines the country’s
long-standing tradition of upholding human rights.

The Government affirms its commitment to fight
against impunity
for atrocity crimes, notwithstanding its withdrawal from the Rome
Statute, especially since the Philippines has a national legislation
punishing atrocity crimes. The Government remains resolute in effecting
its principal responsibility to ensure the long-term safety of the
nation in order to promote inclusive national development and secure a
decent and dignified life for all.

The decision to withdraw is the Philippines’ principled
stand against those who politicize and weaponize human rights,
even
as its independent and well-functioning organs and agencies continue to
exercise jurisdiction over complaints, issues, problems and concerns
arising from its efforts to protect its people.^[269] (Emphasis supplied)

The Philippines’ withdrawal was submitted in
accordance with relevant provisions of the Rome Statute. The
President complied with the provisions of the treaty from which the
country withdrew. There cannot be a violation of pacta sunt
servanda
when the executive acted precisely in accordance with the procedure
laid out by that treaty. Article 127(1) of the Rome Statute states:

1. A State Party may, by written
   notification addressed to the
   Secretary-General of the United Nations, withdraw from this Statute. The
   withdrawal shall take effect one year after the date of receipt of the
   notification, unless the notification specifies a later date.

From its text, the Rome Statute provides no room to reverse
the
accepted withdrawal from it. While there is a one-year period before the
withdrawal takes effect, it is unclear whether we can read into that
proviso a permission for a state party to rethink its position, and
retreat from its withdrawal.

In any case, this Court has no competence to
interpret with
finality—let alone bind the International Criminal Court, the Assembly
of States Parties, individual state parties, and the entire
international community—what this provision means, and conclude that
undoing a withdrawal is viable. In the face of how the Rome Statute
enables withdrawal but does not contemplate the undoing of a withdrawal,
this Court cannot compel external recognition of any prospective
undoing which it shall order. To do so could even mean courting
international embarrassment.

Just the same, any such potential embarrassment or
other
unpalatable consequences arc risks that we, as a country, are willing to
take is better left to those tasked with crafting foreign policy.

The Rome Statute contemplates amendments, and is
replete with provisions on it:

Article 121
Amendments

1. After the expiry of seven years from the entry
   into force of
   this Statute, any State Party may propose amendments thereto. The text
   of any proposed amendment shall be submitted to the Secretary-General of
   the United Nations, who shall promptly circulate it to all States
   Parties.
2. No sooner than three months from the date
   of notification, the
   Assembly of States Parties, at its next meeting, shall, by a majority of
   those present and voting, decide whether to take up the proposal. The
   Assembly may deal with the proposal directly or convene a Review
   Conference if the issue involved so warrants.
3. The
   adoption of an amendment at a meeting of the Assembly of
   States Parties or at a Review Conference which consensus cannot be
   reached shall require a two-thirds majority States
   Parties.
4. Except as provided in paragraph 5, an
   amendment shall enter into
   force for all States Parties one year after instruments of ratification
   or acceptance have been deposited with the Secretary-General of the
   United Nations by seven-eighths of them.
5. Any
   amendment to Articles 5, 6, 7 and 8 of this Statute shall
   enter into force for those States Parties which have accepted the
   amendment one year after the deposit of their instruments of
   ratification or acceptance. In respect of a State Party which has not
   accepted the amendment, the Court shall not exercise its jurisdiction
   regarding a crime covered by the amendment when committed by that State
   Party’s nationals or on its territory.
6. If an
   amendment has been accepted by seven-eighths of States
   Parties in accordance with paragraph 4, any State Party which has not
   accepted the amendment may withdraw from this Statute with immediate
   effect, notwithstanding article 127, paragraph 1, but subject to article
   127, paragraph 2, by giving notice no later than one year after the
   entry into force of such amendment.
7. The
   Secretary-General of the United Nations shall circulate to
   all States Parties any amendment adopted at a meeting of the Assembly of
   States Parties or at a Review Conference.

Article 122
Amendments to provisions of an institutional nature

1. Amendments to provisions of this Statute which
   are of an
   exclusively institutional nature, namely, article 35, article 36,
   paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1
   (first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article
   43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed
   at any time, notwithstanding article 121, paragraph 1, by any State
   Party. The text of any proposed amendment shall be submitted to the
   Secretary-General of the United Nations or such other person designated
   by the Assembly of States Parties who shall promptly circulate it to all
   States Parties and to others participating in the Assembly.
2. Amendments under this article in which consensus
   cannot be
   reached shall be adopted by the Assembly of States Parties or by a
   Review Conference, by a two-thirds majority of States Parties. Such
   amendments shall enter into force for all States Parties six months
   after their adoption by the Assembly of, as the case may be, by the
   Conference.

Article 123
Review of Statute

1. Seven years after the entry into force of this
   Statute the
   Secretary-General of the United Nations shall convene a Review
   Conference to consider any amendments to this Statute. Such review may
   include, but is not limited to, the list of crimes contained in article
   5. The Conference shall be open to those participating in the Assembly
   of State Parties and on the same conditions.
2. At any
   time thereafter, at the request of a State Party and for
   the purposes set out in paragraph 1, the Secretary-General of the United
   Nations shall, upon approval by a majority of States Parties, convene a
   Review Conference.
3. The provisions of article 121,
   paragraphs 3 to 7, shall apply to
   the adoption and entry into force of any amendment to the Statute
   considered in a Review Conference.

Generally, jus cogens rules of customary
international law
cannot be amended by treaties. As Articles 121, 122, and 123 allow the
amendment of provisions of the Rome Statute, this indicates that the
Rome Statute is not jus cogens. At best, its
provisions are
articulations of customary law, or simply, treaty law. Article 121(6)
sanctions the immediate withdrawal of a state party if it does not agree
with the amending provisions of the Rome Statute. Therefore, withdrawal
from the Rome Statute is not aberrant. Precisely, the option is enabled
for states parties.

Petitioners’ contention—that withdrawing from the
Rome Statute
effectively repeals a law—is inaccurate. The Rome Statute remained in
force for its states parties, and Article 127 specifically allows state
parties to withdraw.

In withdrawing from the Rome Statute, the President
complied
with the treaty’s requirements. Compliance with its textual provisions
cannot be susceptible of an interpretation that his act violated the
treaty. Hence, withdrawal per se from the Rome Statute does not violate
pacta sunt servanda.

XVIII

Petitioners in G.R. No. 239483 invoke the case of
South Africa,
which had previously attempted to withdraw from the Rome Statute. When
the withdrawal was challenged by the South African Opposition Democratic
Alliance, the South African High Court ruled that the president’s
withdrawal was premature, procedurally irrational, and may not be done
without the approval of the Parliament. It said:

The matter was argued largely on the basis that there is no
provision in the Constitution or in any other legislation for withdrawal
from international treaties. . . . However, it appears to us that 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 national executive can exercise only those powers and
perform those functions conferred upon it by the Constitution, or by law
which is consistent with the Constitution. This is a basic requirement
of the principle of legality and the rule of law. 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.^[270]

The ruling on South Africa’s withdrawal cannot be taken as
binding precedent.

First, foreign judgments are not binding in our
jurisdiction. At most, they may hold persuasive value.^[271] Francisco
v. House of Representatives^[272]
teaches that this Court, in passing upon constitutional questions,
“should not be beguiled by foreign jurisprudence some of which are
hardly applicable because they have been dictated by different
constitutional settings and needs.”^[273]

Second, a comparison of the Philippines’ and South
Africa’s
respective governmental structures and constitutions reveals stark
differences.

Our Constitution states: “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.”^[274]

On the other hand, the South African Constitution
provides:

SECTION 231. International Agreements

(1)	The negotiating and signing of all international agreements is the responsibility of the national executive
(2)	An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).[275] (Emphasis supplied)

Our Constitution requires that when the president enters into a
treaty, at least two-thirds of all members of the Senate must
concur
for it to be valid and effective. On the other hand, the South African
Constitution expressly requires that the entire parliament must
approve the international agreement.

Per our system of checks and balances, the Senate concurred
with
entering into the Rome Statute through Senate Resolution No. 546. In
contrast, the South African parliament had to enact a law, the
Implementation of the Rome Statute of the International Criminal Court
Act 27 of 2002,^[276] for the
Rome Statute to be adopted in South Africa. Thus, treaty-making in South
Africa is vested in their parliament, making it a concurrently
legislative and not an exclusively executive act. In the Philippines,
treaty-making is an executive act, vested in the president; the Senate’s
involvement is limited to mere concurrence.

While there may be similarities between our
constitutions, these
are not enough to take South Africa’s case as binding precedent. We are
under a presidential form of government. The way our system of checks
and balances operates is different from how such a system would operate m
a parliamentary government.

XIX

Withdrawing from the Rome Statute does not discharge
a state
party from the obligations it has incurred as a member. Article 127(2)
provides:

A State shall not be discharged, by reason of its
withdrawal,
from the obligations arising from this Statute while it was as a Party
to the Statute, including any financial obligations which may
have
accrued. Its withdrawal shall not affect any cooperation with the Court
in connection with criminal investigations and proceedings in relation
to which the withdrawing State had a duty to cooperate and which were
commenced prior to the date on which the withdrawal became effective,
nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the
date on which the withdrawal became effective. (Emphasis supplied)

A state party withdrawing from the Rome Statute must still
comply
with this provision. Even if it has deposited the instrument of
withdrawal, it shall not be discharged from any criminal proceedings.
Whatever process was already initiated before the International Criminal
Court obliges the state party to cooperate.

Until the withdrawal took effect on March 17, 2019,
the
Philippines was committed to meet its obligations under the Rome
Statute. Any and all governmental acts up to March 17, 2019 may be taken
cognizance of by the International Criminal Court.

Further, as petitioners in G.R. No. 239483
underscored:

[U]nder this reverse complementarity provision in [Republic
Act
No. 9851], the Preliminary Examination opened by the [International
Criminal Court] on the President’s drug war is not exactly
haram
(to borrow a word used in Islam to mean any act forbidden by the
Divine). Assuming such a [Preliminary Examination] proceeds . . . when
Art. 18 (3) of the Rome Statute comes into play, [Republic Ad No. 9851]
may be invoked as basis by Philippine authorities to defer instead to
the [International Criminal Court] in respect of any investigation on
the .same situation.^[277]

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.

XX

Petitioners claim that the country’s withdrawal from
the Rome
Statute violated their right to be provided with ample remedies for the
protection of their right to life and security.

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.

As discussed, Republic Act No. 9851 or the
Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity, echoes the substantive provisions of the Rome
Statue. It was signed into law on December 11, 2009, two years before
the Senate concurred with the Rome Statute. Republic Act No. 9851 covers
rights similarly protected under the Rome Statute. Consequently, no new
obligations arose from our membership in the International Criminal
Court. Given the variances between the Rome Statute and Republic Act No.
9851, it may even be said that the Rome Statute amended Republic Act
No. 9851.

Republic Act No. 9851 declares the State policy of
valuing “the
dignity of every human person and guarantee[ing] full respect for human
rights, including the rights of indigenous cultural communities and
other vulnerable groups, such as women and children[.]”^[278]
It guarantees protection against “the most serious crimes of concern to
the international community as a whole . . . and their effective
prosecution must be ensured by taking measures at the national level in
order to put an end to impunity for the perpetrators of these
crime[.]^[279] It
recognizes that the State must “exercise its criminal
jurisdiction over those responsible for international
crimes[.]”^[280]

This is enforced by the Republic Act No. 9851’s
assertion of jurisdiction over crimes committed anywhere in the world:

SECTION 17. Jurisdiction. — The State
shall exercise
jurisdiction over persons, whether military or civilian, suspected or
accused of a crime defined and penalized in this Act, regardless of
where the crime is committed, provided, any one of the following
conditions is met:

(a)	The accused is a Filipino citizen;
(b)	The accused, regardless of citizenship or residence, is present in the Philippines; or
(c)	The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine
authorities may
dispense with the investigation or prosecution of a crime punishable
under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate international
court, if any, or to another State pursuant to the applicable
extradition laws and treaties.

No criminal proceedings shall be initiated against foreign
nationals suspected or accused of having committed the crimes defined
and penalized in this Act if they have been tried by a competent court
outside the Philippines in respect of the same offense and acquitted, or
having been convicted, already served their sentence.^[281]

Republic Act No. 9851 expressly confers original and exclusive

jurisdiction on regional trial courts over the offenses it punishes. It
also provides that this Court shall designate special courts to try
these cases.^[282]
Unlike
the Rome Statute, Republic Act No. 9851 dispenses with complementarity
as a requirement for prosecution of crimes against humanity.

Notably, Republic Act No. 9851 proclaims as state
policy the
protection of human rights of the accused, the victims, and the
witnesses, and provides for accessible and gender-sensitive avenues of
redress:

The State shall guarantee persons suspected or accused of
having
committed grave crimes under international law all rights necessary to
ensure that their trial will he fair and prompt in strict accordance
with national and international law and standards for fair trial, It
shall also protect victims, witnesses and their families, and provide
appropriate redress to victims and their families.. It shall ensure that
the legal systems in place provide accessible and gender-sensitive
avenues of redress for victims of armed conflict[.]^[283]

These State policies are operationalized in the following
provisions:

SECTION 13. Protection of Victims and
Witnesses. – In
addition to existing provisions in Philippine law for the protection of
victims and witnesses, the following measures shall be undertaken:

(a)	The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial;
(b)	As an exception to the general principle of public hearings, the court may, to protect the victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of the victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court, having regard to all the circumstances, particularly the views of the victim or witness;
(c)	Where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the court considers it appropriate in accordance with the established rules of procedure and evidence; and
(d)	Where the disclosure of evidence or information pursuant to this Act may lead to the grave endangerment of the security of a witness for his/her family, the prosecution may, for the purposes of any proceedings conducted prior to the commencement of the trial; withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial.

SECTION 14. Reparations to Victims. – In
addition to
existing provisions in Philippine law and procedural rules for
reparations to victims, the following measures shall be undertaken:

(a)	The court shall follow the principles relating to the reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision, the court may, wither upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and state the principles on which it is acting:
(b)	The court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation; and
(c)	Before making an order under this section, the court may invite and shall take account of representations from or on behalf of the convicted person, victims or other interested persons.

Nothing in this section shall be interpreted as prejudicing
the rights of victims under national or international law.^[284]

Chapter III^[285] of
Republic Act No. 9851 defines war crimes, genocide, and other crimes
against humanity, as similarly characterized in the Rome Statute.

However, there are significant
differences between the Rome Statute and Republic Act No.
9851.

Republic Act No. 9851 defines torture as “the
intentional
infliction of severe pain or suffering, whether physical, mental, or
psychological, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising
only from, inherent in or incidental to, lawful sanctions.”^[286]
Meanwhile, psychological means of torture are not covered by the Rome
Statute. This is also a departure from Republic Act No. 9745, or the
Anti-Torture Act of 2009, which limits torture to those “inflicted by or
at the instigation of or with the consent or acquiescence of a person
in authority or agent of a person in authority”^[287] for specific purposes.

Republic Act No. 9851 clustered war crimes or crimes
against
international humanitarian law into three categories: (1) an
international armed conflict; (2) a non-international armed conflict;
and (3) other serious violations of laws and customs applicable in armed
conflict. It then listed specific acts against protected persons or
properties, or against persons taking no active part in hostilities. The
broader definition of war crimes under Republic Act No. 9851 as
compared with the Rome Statute is emphasized below:

SECTION 4. War Crimes. —- For the purpose
of this Act, “war crimes” or “crimes against International Humanitarian
Law” means:

(a) In case of an international armed conflict, grave
breaches
of the Geneva Conventions of 12 August 1949, namely, any of the
following acts against persons or property protected under the
provisions of the relevant Geneva Convention:

. . . .

(6) Arbitrary
deportation or forcible transfer of population or unlawful
confinement;

(7) Taking of hostages;
(8) Compelling a prisoner of war or other protected person to
serve in the forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of
prisoners of war or other protected persons.

(b) In case of a non-international armed conflict, serious
violations of common Article 3 to the four (4) Geneva Conventions of 12
August 1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including members of the
armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention or any
other cause:

(1) Violence to life and person, in particular,
willful killings, mutilation,
cruel treatment and torture;

. . . .

(3) Intentionally directing attacks against buildings,
material,
medical units and transport, and personnel using the distinctive
emblems of the Geneva Conventions or Additional
Protocol III in conformity with international law;

. . . .

(6) Launching an attack against works or
installations
containing dangerous forces in the knowledge that such attack will cause
excessive loss of life, injury to civilians or damage to civilian
objects, and causing death or serious injury to body or
health;

. . . .

18) Killing or wounding a person in the
knowledge that he/she is hors de combat, including a
combatant who, having laid down his/her arms or no longer having means
of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the
military insignia and uniform of the enemy or of the United Nations, as
well as of the distinctive emblems of the Geneva Conventions or other
protective signs under International Humanitarian Law, resulting in
death, serious personal injury or
capture;

. . . .

(12) Killing, wounding or capturing an
adversary by resort to perfidy;

. . . .

(19) Committing rape, sexual slavery, enforced
prostitution,
forced pregnancy, enforced sterilization, or any other form of sexual
violence also constituting a grave breach of the Geneva Conventions
or a serious violation of common Article 3 to
the Geneva Conventions;

. . . .

(21) Intentionally using starvation of civilians as a
method of
warfare by depriving them of objects indispensable to their survival,
including willfully impeding relief supplies as provided for under the
Geneva Convention and their Additional
Protocols;

. . . .

(24) Committing any of the following acts;

(i) Conscripting, enlisting or
recruiting children under the age of fifteen (15)
years into the national armed forces;
(ii) Conscripting, enlisting or
recruiting children under the age of
eighteen (18) years into an armed force or group other
than the national armed forces; and

(iii) Using children under the age of eighteen
(18) years to participate actively in hostilities;
and

. . . .

Any person found guilty of committing
any of the acts
specified herein shall suffer the penalty provided under Section 7 of
this Act.^[288] (Emphasis supplied)

Acts of willful killing, as opposed to “murder” under the Rome

Statute, deportation or forcible transfer of populations, torture, and
the sexual offenses under the third category of war crimes are also
listed as “other crimes against humanity” under Republic Act No. 9851.

Unlike the Rome Statute, Republic
Act No. 9851 also adds
or includes among other crimes against humanity persecution against any
individual, group, or collectivity based on their sexual
orientation. Enforced or
“involuntary disappearance of persons” is also a punishable crime
against humanity.^[289]

Republic Act No. 9851 holds superiors liable as
principals for
crimes committed by subordinates under their effective command and
control.^[290] This
provides for command responsibility “as a form of criminal complicity”
that jurisprudence has recognized:^[291]

In other words, command responsibility may be loosely
applied in amparo cases in order
to identify those accountable individuals
that have the power to effectively implement whatever processes an
amparo court would issue. In such application, the
amparo
court does not impute criminal responsibility but merely pinpoint the
superiors it considers to be in the best position to protect the rights
of the aggrieved party.

Such identification of the responsible and accountable
superiors
may well be a preliminary determination of criminal liability which, of
course, is still subject to further investigation by the appropriate
government agency.

Relatedly, the legislature came up with Republic Act No.
98)1 to
include command responsibility as a form of criminal complicity in
crimes against international humanitarian law, genocide and other
crimes. RA 9851 is thus the substantive law that definitively
imputes
criminal liability to those superiors who, despite their position,
still fail to take all necessary and reasonable measures within their
power to prevent or repress the commission of illegal acts or to submit
these matters to the competent authorities for investigation and
prosecution.^[292] (Emphasis supplied, citations omitted)

All told, the more restrictive Rome Statute may have even
weakened
the substantive protections already previously afforded by Republic Act
No. 9851. In such a case, it may well be beneficial to remove the
confusion brought about by maintaining a treaty whose contents are
inconsistent with antecedent statutory provisions.

XXI

It has been opined that the principles of law in the
Rome
Statute are generally accepted principles of international law. Assuming
that this is true and considering the incorporation clause, the
Philippines’ withdrawal from the Rome Statute would be a superfluity
thus, ultimately ineffectual. The Philippines would remain bound by
obligations expressed in the Rome Statute:

[G]enerally accepted principles of international law form
part of
Philippine laws even if they do not derive from treaty obligations of
the Philippines.

. . . .

Some customary international laws have been affirmed and
embodied
in treaties and conventions. A treaty constitutes evidence of customary
law if it is declaratory of customary law, or if it is intended to
codify customary law. In such a case, even a State not party to
the
treaty would be bound thereby. A treaty which is merely a formal
expression of customary international law is enforceable on all States
because of their membership in the family of nations. For
instance,
the Vienna Convention on Consular Relations to binding even on non-party
States because the provisions of the Convention are mostly codified
rules of customary international law binding on all States even before
their codification into the Vienna Convention. Another example is the
Law of the Sea, which consists mostly of codified rules of customary
international law, which have been universally observed even before the
Law of the Sea was ratified by participating States.

Corollarily, treaties may become the basis of customary
international law. While States which are not parties to treaties or
international agreements are not bound thereby, such agreements, if
widely accepted for years by many States, may transform into customary
international laws, in which case, they bind even non-signatory States.

In Republic v. Sandiganbayan, this Court
held that even in
the absence of the Constitution, generally accepted principles of
international law remain part of the laws of the Philippines. During the
interregnum, or the period after the actual takeover of power by the
revolutionary government in the Philippines, following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately before
the adoption of the Provisional Constitution), the 1973 Philippine
Constitution was abrogated and there was no municipal law higher than
the directives and orders of the revolutionary government. Nevertheless,
this Court ruled that even during this period, the provisions of the
International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights to which the Philippines is a signatory,
remained in effect in the country. The Covenant and Declaration are
based on generally accepted principles of international law which are
applicable in the Philippines even in the absence of a constitution, as
during the interregnum. Consequently, applying the provisions of the
Covenant and the Declaration, the Filipino people continued to enjoy
almost the same rights found in the Bill of Rights despite the
abrogation of the 1973 Constitution.

The Rome Statute of the International Criminal Court was
adopted
by 120 members of the United Nations (UN) on 17 July 1998. It entered
into force on 1 July 2002, after 60 States became party to the Statute
through ratification or accession. The adoption of the Rome Statute
fulfilled the international community’s long-time dream of creating a
permanent international tribunal to try serious international crimes.
The Rome Statute, which established an international criminal court and
formally declared genocide, war crimes and other crimes against humanity
as serious international crimes, codified generally accepted
principles of international law, including customary international
laws.
The principles of law embodied in the Rome Statute were already
generally accepted principles of international law even prior to the
adoption of the Statute. Subsequently, the Rome Statute itself has been
widely accepted and, as of November 2010, it has been ratified by 114
states, 113 of which are members of the UN.

There are at present 192 members of the UN. Since 113 member

states have already ratified the Rome Statute, more than a majority of
all the UN members have now adopted the Rome Statute as part of their
municipal laws. Thus, the Rome Statute itself is generally accepted by
the Community of nations as constituting a body of generally accepted
principles of international law. The principles of law found
in the
Rome Statute constitute generally accepted principles of international
law enforceable in the Philippines under the Philippine Constitution.
The
principles of law embodied in the Rome Statute are binding on the
Philippines even if the Statute has yet to be ratified by the Philippine
Senate. In short, the principles of law enunciated in the Rome Statute
are now part of Philippine domestic law pursuant to Section 2 , Article
II of the 1987 Philippine Constitution.^[293] (Emphasis in the original, citations omitted)

Chapter VII, Section 15 of Republic Act No. 9851 enumerates
the
applicable sources of international law that guide its interpretation
and implementation:

SECTION 15. Applicability of International
Law. — In the application and interpretation of this Act,
Philippine courts shall be guided by the following sources:

(a)	The 1948 Genocide Convention;
(b)	The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III;
(c)	The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol;
(d)	The 1989 Convention on the Rights of the Child and its 2000 optional Protocol on the Involvement of Children in Armed Conflict;
(e)	The rules and principles of customary international law;
(f)	The judicial decisions of international courts and trbunals;
(g)	Relevant and applicable international human rights instruments;
(h)	Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and
(i)	Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law.

As listed by the Office of the Solicitor General, the
Philippines
also remained as state party to these international conventions and
human rights instruments:

(a)	The International Covenant on Civil and Political Rights;
(b)	The International Covenant on Economic, Social, and Cultural Rights;
(c)	The Convention Against Torture;
(d)	The Convention on the Discrimination Against Women; an Elimination of Discrimination; and
(e)	The Convention on the Elimination of Racial Discrimination.[294]

Thus, petitioner’s concern that the country’s withdrawal from
the
Rome Statute abjectly and reversibly subverts our basic human rights
appears to be baseless and purely speculative.

All told, the consolidated Petitions are dismissed
for failing
to demonstrate justiciability. While we commend the zealousness of
petitioners in seeking to ensure that the President acts within the
bounds of the Constitution, they had no standing to file their suits. We
cannot grant the reliefs they seek. The unfolding of events, including
the International Criminal Court’s acknowledgment of withdrawal even
before the lapse of one year from initial notice, rendered the
Petitions’ moot, removing any potential relief from this Court’s sphere.

Mechanisms that safeguard human rights and protect
against the
grave offenses sought to be addressed by the Rome Statute remain
formally in place in this jurisdiction. Further, the International
Criminal Court retains jurisdiction over any and all acts committed by
government actors until March 17, 2019. Hence, withdrawal from the Rome
Statute does not affect the liabilities of individuals charged before
the International Criminal Court for acts committed up to this date.

As guide for future cases, this Court recognizes
that, as
primary architect of foreign policy, the President enjoys a degree of
leeway to withdraw from treaties which are bona fide deemed contrary to
the Constitution or our laws, and to withdraw in keeping with the
national policy adopted pursuant to the Constitution and our laws.

However, the President’s discretion to withdraw is
qualified by
the extent of legislative involvement on the manner by which a treaty
was entered into or came into effect. The President cannot unilaterally
withdraw from treaties that were entered into pursuant to the
legislative intent manifested in prior laws, or subsequently affirmed by
succeeding laws. Treaties where Senate concurrence for accession is
expressly premised on the same concurrence for withdrawal likewise
cannot be the subject of unilateral withdrawal. The imposition of Senate
concurrence as a condition may be made piecemeal, through individual.
Senate resolutions pertaining to specific treaties, or through
encompassing legislative action, such as a law, a joint resolution by
Congress, or a comprehensive Senate resolution.

Ultimately, the exercise of discretion to withdraw
from treaties
and international agreements is susceptible to judicial review in cases
attended by grave abuse of discretion, as when there is no clear,
definite, or reliable showing of repugnance to the Constitution or our
statutes, or in cases of inordinate unilateral withdrawal violating
requisite legislative involvement. Nevertheless, any attempt to invoke
the power of judicial review must conform to the basic requisites of
justiciability. Such attempt can only proceed when attended by incidents
demonstrating a properly justiciable controversy.

WHEREFORE, the consolidated
Petitions in G.R. Nos. 238875, 239483, and 240954 are
DISMISSED for being moot.

SO ORDERED.

Peralta, C.J., Perlas-Bernabe, Caguioa,
Gesmundo, Hernando,
Carandang, Lazaro-Javier, Inting, Zalameda, M. Lopez, Delos Santos,
Gaerlan, Rosario, and J. Lopez, JJ.,
concur.

---

^[1] The Petition
in G.R. No.
238875 was filed on May 16, 2018; the Petition in G.R. No. 293483 on
June 7, 2018; and the Petition in G.R. No. 240954 on August 14, 2018.

^[2] Oral
Arguments, TSN dated September 4, 2018, p. 14.

^[3]
Rollo (G.R. No. 238875), p. 16, Petition.

^[4]
Rollo (G.R. No. 239483), p. 8, Petition.

^[5]
Rollo (G.R. No. 238875), p. 8, Petition.

^[6]
See United
Nations Treaty Collection, available at <https://treaties.
un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#2> (last accessed on March 3,
2021).

^[7]
Rollo (G.R. No. 239483), p. 11, Petition.

^[8] CONST., art. VII, sec. 21 provides:

SECTION 21. 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.

^[9]
Rollo (G.R. No. 238875), p. 8, Petition.

^[10] Id.

^[11] Rollo (G.R. No. 239483), pp.
12-13, Petition.

^[12] Id. at 13.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Id. at 14.

^[17] Id. at 19.

^[18] Rollo (G.R. No. 238875), p.
18.

^[19] Rollo (G.R. No. 239483), p.
19, Petition.

^[20] Rollo (G.R. No. 238875), pp.
3-17.

^[21] Oral Arguments, TSN dated September 4, 2018, p.
14.

^[22] Rollo (G.R. No. 239483), pp.
3-58.

^[23] Rollo (G.R. No. 238875), pp.
51-102.

^[24] Rollo (G.R. No. 240954), pp.
8-36.

^[25] Id. at 3-7.

^[26] Rollo (G.R. No. 239483), pp.
603-676, 678-718, 719-794, 813-942.

^[27] International Criminal Court,
President of the Assembly of States Parties regrets withdrawal
from the Rome Statute by the Philippines, available at
<https://www.icc-cpi.int/Pages/item.aspx?name=pr1443>
(last accessed on March 3, 2021 ).

^[28] Id.

^[29] Rollo (G.R. No. 238875), p.
9.

^[30] Id.

^[31] Id. at 10.

^[32] Id. at 11.

^[33] Rollo (G.R. No. 239483), pp.
20-21.

^[34] Id. at 27-30.

^[35] Id. at 38.

^[36] Rollo (G.R. No. 238875), p.
16.

^[37] Rollo (G.R. No. 239483), p.
49.

^[38] Id.

^[39] Id. at 80, Consolidated Comment.

^[40] Id. at 82-83.

^[41] Id. at 91.

^[42] Id. at 92-93.

^[43] Id. at 88.

^[44] Id.

^[45] Id. at 89.

^[46] Id. at 110.

^[47] Id. at 95.

^[48] Id. at 96-98.

^[49] Id. at 110-116.

^[50] Id. at 116.

^[51] Id. at 117.

^[52] Rollo (G.R. No. 239483), p.
49 and rollo (G.R. No. 238875), p. 16.

^[53] Francisco, Jr. v. House of
Representatives, 460 Phil. 830, 915 (2003) [Per J. Carpio
Morales, En Banc], citing the Concurring Opinion of
Justice Vicente Mendoza in Estrada v. Desierto, 406
Phil. 1 (2001) [Per J. Puno, En Banc]; Demetria v.
Alba, 232 Phil. 222 (1987) [Per J. Fernan, En Banc],
citing Ashwander v. TVA, 297 U.S. 288 (1936).

^[54] Rome Statute, art. 127 provides:

Article 127
Withdrawal
1. A State Party may, by written notification addressed to the
Secretary-General of the United Nations, withdraw from this Statute. The
withdrawal shall take effect one year after the date of receipt of the
notification, unless the notification specifies a later date.

2. A State shall not be discharged, by reason of its withdrawal,
from the obligations arising from this Statute while it was a Party to
the Statute, including any financial obligations which may have accrued.
Its withdrawal shall not affect any cooperation with the Court
in
connection with criminal investigations and proceedings in relation to
which the withdrawing State had a duty to cooperate and which were
commenced prior to the date on which the withdrawal became effective,
nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the
date on which the withdrawal became effective. (Emphasis
supplied)

^[55] The
International Criminal Court, Understanding the International
Criminal Court, I, available at <https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf>
(last accessed on March 3, 2021).

^[56] Id. at 4.

^[57] Id. at 3.

^[58] DR MISA
ZGONEC-ROZEJ, ET.AL., INTERNATIONAL CRIMINAL LAW MANUAL 48-49 (2010),
available at <https://www.ibanet.org/Article/NewDetail.aspx?
ArticleUid=AAD84F6F-8058-4A1F-91CE­ BE0EBA974D3E> (last
accessed on
March 3, 2021).

^[59] LAURA BARNETT, THE INTERNATIONAL CRIMINAL
COURT: HISTORY AND ROLE 2 (2013).

^[60] DR MISA
ZGONEC-ROZEJ, ET.AL., INTERNATIONAL CRIMINAL LAW MANUAL 50 (2010),
available at <https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=AAD84F6F-8058-4A1F-91CE­
BE0EBA974D3E> (last accessed on March 3, 2021).

^[61] ROBERT CRYER,
HAKAN FRIMAN, DARRYL ROBINSON, ELIZABETH WILMSHURST, AN INTRODUCTION TO
INTERNATIONAL CRIMINAL LAW AND PROCEDURE 111 (2^nd
ed., 2010).

^[62] Id.

^[63] DR MISA
ZGONEC-ROZEJ, ET.AL., INTERNATIONAL CRIMINAL LAW MANUAL 50 (2010),
available at <https://www.ibanet.org/Article/NewDetail.aspx?
ArticleUid=AAD84F6F-8058-4A1F-91CE­ BE0EBA974D3E> (last
accessed on
March 3, 2021).

^[64] WILLIAM A. SCHABAS, INTRODUCTION TO THE
INTERNATIONAL CRIMINAL COURT 6 (2^nd ed., 2004).

^[65] ROBERT CRYER,
HAKAN FRIMAN, DARRYL ROBINSON, ELIZABETH WILMSHURST, AN INTRODUCTION TO
INTERNATIONAL CRIMINAL LAW AND PROCEDURE 111 (2^nd
ed., 2010).

^[66] Id. at 115.

^[67] DR MISA
ZGONEC-ROZEJ, ET.AL., INTERNATIONAL CRIMINAL LAW MANUAL 52 (2010),
available at <https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=AAD84F6F-8058-4A1F-91CE­
BE0EBA974D3E> (last accessed on March 3, 2021).

^[68] Id. at 53.

^[69] LAURA BARNETT, THE INTERNATIONAL CRIMINAL
COURT: HISTORY AND ROLE 3 (2013).

^[70] ROBERT CRYER,
HAKAN FRIMAN, DARRYL ROBINSON, ELIZABETH WILMSHURST, AN INTRODUCTION TO
INTERNATIONAL CRIMINAL LAW AND PROCEDURE 122 (2^nd
ed., 2010).

^[71] LAURA BARNETT, THE INTERNATIONAL CRIMINA L
COURT: HISTORY AND ROLE 5 (2013).

^[72] DR MISA
ZGONEC-ROZEJ, ET.AL., INTERNATIONAL CRIMINAL LAW MANUAL 62 (2010),
available at <https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=AAD84F6F-8058-4A1F-91CE­BE0EBA974D3E>
(last accessed on March 3, 2021).

^[73] Id.

^[74] Id. at 63.

^[75] Id.

^[76] Rome Statute, art. 4 provides:

Article 4
Legal status and powers of the Court.
The Court shall have international legal personality. It shall also
have such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes. 2. The Court may exercise
its functions and powers, as provided in this Statute, on the territory
of any State Party and, by special agreement, on the territory of any
other State.

^[77] The
International
Criminal Court, Understanding the International Criminal Court, 4,
available at <https://www.icc-cpi.int/iccdocs/
PIDS/publications/UICCEng.pdf> (last accessed on March
7, 2021).

^[78] Rome Statute, art. 4.

^[79] Rome Statute, art. 1 provides:

Article 1

The Court

An International Criminal Court (“the Court”) is hereby established.
It shall be a permanent institution and shall have the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this
Statute.

^[80]
WILLIAM A. SCHABAS, INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 154
(2^nd ed., 2004).

^[81] Rome Statute, art. 25.

^[82] Rome Statute, art. 25(4) provides:

. . . .


(4) No provision in this Statute relating to individual criminal
responsibility shall affect the responsibility of States under
international law.

^[83] Rome
Statute, art. 28 provides:

Article 28

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility
under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a
military commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as the
case ma y be, as a result of his or her failure to exercise control
properly over such forces, where:


(i) That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary
and reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent authorities
for investigation and prosecution.

(b) With respect to superior and subordinate relationships not
described in paragraph (a), a superior shall be criminally responsible
for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a
result of his or her failure to exercise control properly over such
subordinates, where:

(i) The superior either knew, or consciously disregarded information
which clearly indicated, that the subordinates were committing or about
to commit such crimes;

(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission
or to submit the matter to the competent authorities for investigation
and prosecution.

^[84]
Rome Statute, art. 27.

^[85] Rome Statute, art. 86.

^[86] Rome Statute, art. 87.

^[87] Rome Statute, art. 87(4) provides:

Article 87
Requests for cooperation: general provisions
. . . .


4. In relation to any request for assistance presented under this
Part, the Court may take such measures, including measures related to
the protection of information, as may be necessary to ensure the safety
or physical or psychological well-being of any victims, potential
witnesses and their families. The Court may request that any information
that is made available under this Part shall be provided and handled in
a manner that protects the safety and physical or psychological
well-being of any victims, potential witnesses and their families.

^[88]
Rome Statute, art. 87(6) provides:

. . . .


6. The Court may ask any intergovernmental organization to provide
information or documents. The Court may also ask for other forms of
cooperation and assistance which may be agreed upon with such an
organization and which are in accordance with its competence or mandate.

^[89] Id.
at art. 88.

^[90] Rome Statute, art. 87(7) provides:

. . . .


7. Where a State Party fails to comply with a request to cooperate
by the Court contrary to the provisions of this Statute, thereby
preventing the Court from exercising its functions and powers under this
Statute, the Court may make a finding to that effect and refer the
matter to the Assembly of States Parties or, where the Security Council
referred the matter to the Court, to the Security Council.

^[91]
International Criminal Court, President of the Assembly of
States Parties regrets withdrawal from the Rome Statute by the
Philippines, available at <https://www.icc-cpi.int/Pages/item.aspx?name=pr1443>
(last accessed on March 3, 2021).

^[92] Rome Statute, art. 77.

^[93] Rome Statute, art. 119(1).

^[94] Rome Statute, art. 119(2).

^[95] United Nations Treaty Collection, Rome
Statute of the International Criminal Court,
available at <https://treaties.
un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XVIII-10&chapter=18&lang=en
#2> (last accessed on March 3, 2021).

^[96] Id.

^[97] Administrative Order No. 387 (1998), sec. 2.

^[98] Administrative Order No. 387 (1998), sec. 3.

^[99] United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, Official Records, Vol. II (June 15 – July
17, 1998), p. 30, available at <https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf>
(last accessed on March 3, 2021).

^[100] Id. at 82.

^[101] United Nations
Diplomatic Conference of Plenitpotentiaries on the Establishment of an
International Criminal Court, Official Records, Vol. II (June 15 – July
17, 1998), p. 30, available at <https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings
v2_e.pdf> (last accessed on March 3, 2021).

^[102] Id. at 122.

^[103] Pimentel, Jr. v. Executive
Secretary, 501 Phil. 303, 309 (2005) [Per J. Puno, En Banc].

^[104] Rome Statute, art. 125.

^[105] Rome Statute, art. 125.

^[106] Pimentel, Jr. v. office of the
Executive Secretary, 501 Phil. 303, 310 (2005) [Per J. Puno,
En Banc].

^[107] 501 Phil. 303 (2005) [Per J . Puno, En Banc].

^[108] Id. at 318.

^[109] Id. at 314-315.

^[110] Id. at 316.

^[111] Id. at 317-318.

^[112] Republic Act No. 9851 (2009), sec. 4(c)(24).

^[113] Republic Act No. 9851 (2009), sec. 17.

^[114] For instance,
the Philippines advocated that “the use of weapons of mass destruction,
including nuclear weapons, must be considered a war crime.”
See
United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, Official Records, Vol.
II (June 15 – July 17, 1998), p. 82, available at <https://
legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2 _e.pdf>
(last accessed on March 3, 2021 ).

However, as the Rome Statute defined the various
acts involving
violations of International Humanitarian Laws, it removed nuclear
weapons in terms of proportionality requirement in deference to a debate
among the delegate-countries since some are capable of developing them.
See Kara Allen with Scott Spence and Rocio
Escauriaza Leal, The
use of chemical or biological weapons in armed conflict is a serious
crime of international concern that should be explicitly prohibited by
the Rome Statute, VERTIC BRIEF (2011), available at <http://www.
vertic.org/media/assets/ Publications/VB%2014.pdf> (last
accessed
March 3, 2021).

^[115] PH ratifies
International Criminal Court Statute available at <https://news.abs-cbn.com
/nation/03/06/11/ph-ratifies-international-criminal-court-statute>
(last accessed on March 3, 2021)

^[116] S. No. 546, 15^th Cong.,
2^nd Sess. (2011).

^[117] International Criminal Court, ICC
Statement on The Philippines’ notice of withdrawal: State participation
in Rome Statute system essential to international rule of
law, available at <https://www.icc-cpi. int/Pages item
.aspx?name=pr1371> (last accessed on March 7, 2021).

^[118] Vienna Convention on the Law of Treaties, art.
2(1). The treaty was signed May 23, 1969.

^[119] Executive Order No. 459 (1997), sec. 2(b).

^[120] China National Machinery &
Equipment Corp. v. Santamaria, 681 Phil. 198-227 (2012). [Per
J. Sereno, En Banc], citing Bayan v. Romulo, 641 SCRA
244, 258-259 (2011) [Per J. Velasco, Jr., En Banc].

^[121] Saguisag v. Ochoa, 777
Phil. 280, 396 (2016) [Per C.J. Sereno, En Banc].

^[122] Id. at 387.

^[123] Id. at 387-388.

^[124] Id. at 388-389.

^[125] Executive Order No. 459 (1997), sec. 2(a)
provides:

SECTION 2. Definition of Terms. –


a. International agreement — shall refer to a contract or
understanding, regardless of nomenclature, entered into between the
Philippines and another government in written form and governed by
international law, whether embodied in a single instrument or in two or
more related instruments[.]

^[126]
Executive Order No. 459 (1997), sec. 7 provides:

SECTION 7. Domestic Requirements for the Entry into
Force of a Treaty or an Executive Agreement.
— The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department
of Foreign Affairs after their signing for the preparation of the
ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines
arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement
by the concerned agency, shall transmit the agreements to the President
of the Philippines for his ratification. The original signed instrument
of ratification shall then be returned to the Department of Foreign
Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with
the requirements provided in sub-paragraph 1 and 2, item A (Executive
Agreements) of this Section. In addition, the Department of Foreign
Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy
of the treaties, in such numbers as may be required by the Senate,
together with a certified true copy of the ratification instrument,
shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of
Foreign Affairs shall comply with the provision of the treaties in
effecting their entry into force.

^[127]
Justice Carpio Morales opined that this is “[t]he most authoritative
enumeration of the sources of international law.” See Separate
Opinion in Rubrico v. Arroyo, 627 Phil. 37, 80 (2010) [Per J.
Velasco, Jr., En Banc].

^[128]
Pharmaceutical and Health Care Association of the Philippines
v. Duque III, 561 Phil. 386, 399-400 (2007) [Per J.
Austria-Martinez, En Banc].

^[129] G.R. No. 148571, December 17, 2002
(Resolution) [En Banc].

^[130] See J. Vitug, Separate
Opinion in Government of the United States of America v.
Purganan, G.R. No. 148571, December 17, 2002 (Resolution) [En
Banc] citing Ian Brownlie, “Principles of Public
International Law,” Claredon Press, Oxford, (5^th
ed., 1998), p. 15.

^[131] Id., citing RESTATEMENT
(THIRD), OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S102 (2)
(1987).

^[132] Id.

^[133] See J. Carpio Morales,
Separate Opinion in Rubrico v. Arroyo, 627 Phil. 37,
80 (2010) [Per J. Velasco, Jr., En Banc].

^[134] Id.

^[135] Id. at 80-81.

^[136] See J. Carpio, Dissenting
Opinion in Bayan Muna v. Romulo, 656 Phil. 246 (2011)
[Per J. Velasco, Jr., En Banc].

^[137] Id. at 325-326.

^[138] Pharmaceutical and Health Care
Association of the Philippines v. Duque III, 561 Phil. 386,
397-398 (2007) [Per J. Austria-Martinez, En Banc].

^[139] David v. Senate Electoral
Tribunal, 795 Phil. 529 (2016) [Per J. Leonen, En Banc].

^[140] 396 Phil. 623 (2000) [Per J. Buena, En Banc].

^[141] Id. at 629.

^[142] Id.

^[143] 790 Phil. 276 (2016) [Per J. Bersamin, En
Banc].

^[144] Id. at 307-309.

^[145] 1935 CONST., art. II, sec. 3 provides:

ARTICLE II
Declaration of Principles
….

SECTION 3. The Philippines renounces war as an instrument of national
policy, and adopts the generally accepted principles of international
law as part of the law of the Nation. (Emphasis
supplied)

^[146]
1973 CONST., art. II, sec. 3 provides:

ARTICLE II

Declaration of Principles and State Policies

….


SECTION 3. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres
to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations. (Emphasis supplied)

^[147]
The 1935 Constitution used “‘nation” instead of “land,” an immaterial
change for our purposes.

^[148] CONST., art. II, sec. 2.

^[149] J. Leonen, Concurring Opinion in
Intellectual Property Association of the Philippines v.
Ochoa, 790 Phil. 276 (2016) [Per J. Bersamin, En Banc].

^[150] Pimentel, Jr. v. Executive
Secretary, 501 Phil. 303, 317 (2005) [Per J . Puno, En Banc).

^[151] Id. at 313-314.

^[152] Goldwater v. Carter, 444
U.S. 996 (1979).

^[153] Koh, Harold Hongju, Presidential
Power to Terminate International Agreements, November 12,
2018. The Yale Law Journal Forum, pp. 437-439.

^[154] Goldwater v. Carter, 444
U.S. 996 (1979).

^[155] Id.

^[156] Id.

^[157] J. Rehnquist, Concurring Opinion, joined by
Chief Justice Burger, Justice Stewart, and Justice Stevens, in
Goldwater v. Carter, 444 U.S. 996 (1979).

^[158] J. Powell, Concurring Opinion in
Goldwater v. Carter, 444 U.S. 996 (1979).

^[159] Sterling
Professor of International Law, Yale Law School; Legal Adviser to the
U.S. Department of State, 2009-13; Assistant Secretary of State for
Democracy, Human Rights and Labor, 1998-2001.

^[160] Koh, Harold Hongju, Presidential
Power to Terminate International Agreements, November 12,
2018, The Yale Law Journal Forum, p. 481.

^[161] Id.

^[162] Id. at 432.

^[163] Id. at 436.

^[164] Id. at 432.

^[165] See Michael J. Turner, Fade to Black:
The Formalization of Jackson’s Youngstown Taxonomy by Hamdan and
Medellin, American University Law Review 58, no. 3 (February
2009).

^[166] 343 U.S. 579 (1952).

^[167] Koh, Harold Hongju, Presidential
Power to Terminate International Agreements, November 12,
2018, The Yale Law Journal Forum, p. 462.

^[168] Id.

^[169] 552 U.S. 491 (2008).

^[170] See C.J. Puno, Dissenting
Opinion in Nicolas v. Romulo, 598 Phil. 262 (2009)
(Per J. Azcuna, En Banc].

^[171] Id. at 239-296.

^[172] 777 Phil. 280 (2016) [Per C.J. Sereno, En
Banc]

^[173] Id. at 564-565.

^[174] 160 Phil. 637 (1975) [Per J. Fernando, En
Banc]

^[175] Id. at 629.

^[176] Id. at 644-645.

^[177] 396 Phil. 623 (2000). [Per J. Buena, En Banc].

^[178] See C.J. Puno, Dissenting
Opinion in Akbayan v. Aquino, 580 Phil. 422 (2008)
[Per J. Carpio Morales, En Banc].

^[179] See C.J. Puno, Dissenting
Opinion in Bayan v. Zamora, 396 Phil. 687-688 (2000)
[Per J. Buena, En Banc].

^[180] CONST., art. VII, sec. 17.

^[181] See CONST., art. II, sec.
1.

^[182] CONST. art. VI, sec. 28(6)

^[183] CONST. art. VII, sec. 19.

^[184] CONST. art. VII, sec. 21.

^[185] Saguisag V. Ochoa, 777
Phil. 208, 387 (2016) [Per C.J. Sereno, En Banc].

^[186] Id. at 389.

^[187] CONST., art. VIII, sec. 5.

^[188] 379 Phil. 165 (2000) [Per J. Melo, En Banc].

^[189] Id. at 212-213.

^[190] Id. at 212.

^[191] Id. at 213. The Latin maxim means “a later law
repeals an earlier law.”

^[192] Id.

^[193] Angara v. Electoral
Commission, 63 Phil. 139, 157 (1936) [Per J. Laurel, En Banc].

^[194] CONST. art. VII, sec. 17.

^[195] CONST. art. VII, sec. 5.

^[196] Angara v. Electoral
Commission, 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

^[197] Francisco, Jr. v. House of
Representatives, 460 Phil. 830, 863 (2003) [Per J. Carpio
Morales, En Banc].

^[198] Angara v. Electoral
Commission, 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

^[199] 63 Phil. 139 (1936) [Per J. Laurel, En Banc]

^[200] Id. at 158.

^[201] Francisco, Jr. v. House of
Representatives, 460 Phil. 830, 883 (2003) [Per J. Carpio
Morales, En Banc].

^[202] Association of Medical Clinics for
Overseas Workers, Inc. v. GCC Approved Medical Centers Association,
Inc., 802 Phil. 116 (2016) [Per J. Brion, En Banc].

^[203] Association of Medical Clinics for
Overseas Workers, Inc. v. GCC Approved Medical Centers Association,
Inc., 802 Phil. 116, 137-140 (2016) [Per J. Brion, En Banc].

^[204] 318 Phil. 546 (1997) [Per J. Panganiban, En
Banc].

^[205] Id. at 574-575.

^[206] Falcis III v. Civil Registrar
General,
G.R. No. 217910, September 3, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65744>

[Per J. Leonen, En Banc] citing Knights of Rizal v. DMCI Homes,
Inc., 809 Phil. 453, 529 (2017) [Per J. Carpio, En Banc].

^[207] G.R. No. 202275, July 17, 2018, 872 SCRA 50
[Per J. Leonen, En Banc].

^[208] Id. at 98-100.

^[209] Ocampo v. Enriquez, 798
Phil. 227, 288 (2016) [Per J. Peralta, En Banc], citing
Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., 721
Phil. 416, 518 (2013).

^[210] Spouses Imbong v. Ochoa,
Jr., 732 Phil. 1, 123 (2014) [Per J. Mendoza, En Banc],
citing Republic Telecommunications Holding, Inc. v.
Santiago, 556 Phil. 83, 91-92 (2007) [Per J. Tinga, Second
Division].

^[211] David v. Macapagal Arroyo,
522 Phil. 705, 752 (2006) [Per J. Sandoval-Gutierrez, En Banc].

^[212] 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

^[213] Id. at 158-159.

^[214] David v. Senate Electoral
Tribunal, 795 Phil. 529, 575 (2016) [Per J. Leonen, En Banc].
In footnote no. 147 of the same, this Court raised, as an example,
In
the Matter of Save the Supreme Court Judicial Independence and Fiscal
Autonomy Movement v. Abolition of Judiciary Development Fund,
751 Phil. 30 (2015) [Per J . Leonen, En Banc].

^[215] Peñafrancia Sugar Mill, Inc. v. Sugar
Regulatory Administration, 728 Phil. 535, 540 (2014) [Per. J.
Perlas-Bernabe, Second Division].

^[216] 728 Phil. 535 (2014) [Per J. Perlas-Bernabe,
Second Division].

^[217] Id. at 540.

^[218] President of the Assembly of States
Parties regrets withdrawal from the Rome Statute by the
Philippines,
INTERNATIONAL CRIMINAL COURT, March 18, 2019, <https://www.icc-cpi.int/Pages/item.aspx?name=pr1443> (Last
accessed
on February 22, 2020).

^[219] The Petition in
G.R. No. 238875 was filed on May 16, 2018; the Petition in G.R. No.
293483 on June 7, 2018; and the Petition in G.R. No. 240954 on August
14, 2018.

^[220] ICC Statement
on The Philippines’ notice of withdrawal. State participation in Rome
Statute system essential to international rule of law,
INTERNATIONAL
CRIMINAL COURT, March 20, 2018 <https://www.icc-cpi.int/Pages/item
.aspx?name=pr1371> (last accessed on February 28, 2021).

^[221] Rollo (G.R. No. 238875), p.
4, Petition.

^[222] See J. Leonen, Dissenting
Opinion in Imbong v. Ochoa, 732 Phil. 1 (2014) [Per
J. Mendoza, En Banc].

^[223] See Kilosbayan v. Morato,
316 Phil. 652 (1995) [Per J. Mendoza, En Banc].

^[224] G.R. No. 217910,
September 3, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65744>

[Per J. Leonen, En Banc].

^[225] Id.

^[226] Rollo (G.R. No. 238875), p.
6, Petition.

^[227] Id. at 6-7.

^[228] Rollo (G.R. No. 239483),
pp. 20-21, Petition.

^[229] Id. at 21-22.

^[230] Rollo (G.R. No. 240954), p.
14.

^[231] See Saguisag v. Ochoa, 777
Phil. 280 (2016) [Per C.J. Sereno, En Banc]; Philconsa v.
Enriquez, 305 Phil. 546 (1994) [Per J. Quiason, En Banc];
Pimentel, Jr. v. Office of the Executive Secretary,
501 Phil. 303 (2005) [Per J. Puno, En Banc].

^[232] S. No. 305, 17^th Cong.,
1^st Sess. (2017).

^[233] TSN, September 4, 2018 Oral Arguments, p. 14.

^[234] Id. at 15.

^[235] S. No. 546, 15^th Cong.,
2^nd Sess. (2011).

^[236] Goldwater v. Carter, 444
U.S. 996 (1979).

^[237] J. Powell, Concurring Opinion in
Goldwater v. Carter, 444 U.S. 996, 996-997 (1979).

^[238] Telecommunications and Broadcast
Attorneys of the Philippines, Inc. v. COMELEC, 352 Phil. 153,
168 (1998) [Per J. Mendoza, En Banc].

^[239] Provincial Bus Operators Association
of the Philippines v. Department of Labor and Employment, G.R.
No. 202275, July 17, 2018, 872 SCRA 50, 105 [Per J. Leonen, En Banc].

^[240] Id. At 103.

^[241] Kilosbayan v. Guingona, 302
Phil. 107 (1994) [Per J. Davide, Jr. En Banc].

^[242] Provincial Bus Operators Association
of the Philippines v. Department of Labor and Employment, G.R.
No. 202275, July 17, 2018, 872 SCRA 50, 106 [Per J. Leonen, En Banc].

^[243] 561 Phil. 386 (2007) [Per J. Austria-Martinez,
En Banc].

^[244] Id. at 396.

^[245] Id. at 395-396 citing Executive
Secretary v. Court of Appeals, 473 Phil. 27 (2004) [Per J.
Callejo, Sr., Second Division].

^[246] G.R. No. 202275, July 17, 2018, 872 SCRA 50
[Per J. Leonen, En Banc].

^[247] Id. at 110-111.

^[248] G.R. No. 217910,
September 3, 2019 <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65744>

[Per J. Leonen, En Banc].

^[249] 638 Phil. 542 (2010) [Per J. Brion, En Banc].

^[250] Id. at 556-557.

^[251] Imbong v. Ochoa, 732 Phil.
1, 125 (2014) [Per J. Mendoza, En Banc]. See also J.
Leonen, Dissenting Opinion.

^[252] See Francisco, Jr. v. House of
Representatives, 460 Phil. 830 (2003) [Per J. Carpio Morales,
En Banc].

^[253] See GCC Approved Medical Centers
Association, Inc., 802 Phil. 116 (2016) [Per J. Brion, En
Banc].

^[254] See GSIS Family Bank Employees Union
v. Villanueva,
G.R. No. 210773, January 23, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64921>

[Per J. Leonen, Third Division] citing Association of Medical
Clinics for Overseas Workers, Inc., (AMCOW) v. GCC Approved Medical
Centers Association, Inc., 802 Phil. 116, 142 (2016) [Per J.
Brion, En Banc].

^[255] Falcis III v. Civil Registrar
General,
G.R. No. 217910, September 3, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65744>

[Per J. Leonen, En Banc] citing Ocampo v. Enriquez,
798 Phil. 227, 288 (2016) [Per J. Peralta, En Banc], further citing
Belgica v. Hon. Executive Secretary Ochoa, Jr., 721
Phil. 416 (2013) [Per J. Perlas-Bernabe, En Banc].

^[256] Falcis III v. Civil Registrar
General,
G.R. No. 217910, September 3, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65744>

[Per J. Leonen, En Banc].

^[257] Galicto v. Aquino, 683
Phil. 141, 167 (2012) [Per J. Brion, En Banc].

^[258] 289 Phil. 887 (1992) [Per J. Campos, Jr., En
Banc].

^[259] Id. at 894.

^[260] Integrated Bar of the Philippines v.
Zamora, 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].

^[261] Tañada v. Cuenco, 103 Phil.
1051, 1067 (1957) [Per J. Concepcion, En Banc].

^[262] 392 Phil. 618 (2000) [Per J. Kapunan, En
Banc].

^[263] Id. at 637-638.

^[264] CONST., art. VII, sec. 1.

^[265] 396 Phil. 623 (2000) [Per J. Buena, En Banc].

^[266] Id. at 663.

^[267] G.R. No. 192223, July 23, 2018, 872 SCRA 277
[Per J. Leonen, Third Division].

^[268] Id. at 294-297.

^[269] Note Verbale
dated March 15, 2018, “Philippines: Withdrawal”, available at <https://treaties.un.org/doc/Publication/CN/2018/CN.138.2018-Eng.pdf>
(last accessed on March 5, 2021).

^[270] Rollo (G.R. No. 239483), p.
29, Petition.

^[271] Central Bank Employees Association,
Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531-793 (2004)
[Per J. Puno, En Banc].

^[272] 460 Phil. 830, 935 (2003) [Per J. Carpio
Morales, En Banc].

^[273] Id. at 889.

^[274] CONST., art. VII, sec. 21.

^[275] 1996 Constitution of South Africa, Ch. 14,
sec. 231 as found in rollo (G.R. No. 239483) p.
106, Petition.

^[276] Available at <https://justice.gov.za/legislation/acts/2002-027.pdf> (last
accessed on March 8, 2021).

^[277] Rollo (G.R. No. 239483), p.
45, Petition.

^[278] Republic Act No. 9851 (2009), sec. 2(b).

^[279] Republic Act No. 9851 (2009), sec. 2(c).

^[280] Republic Act No. 9851 (2009), sec. 2(e).

^[281] Republic Act No. 9851 (2009), sec. 17.

^[282] Republic Act No. 9851 (2009), sec. 18.

^[283] Republic Act No. 9851 (2009), sec. 2(f).

^[284] Republic Act No. 9851 (2009), secs. 13 and 14.

^[285] Crimes Against International
Humanitarian Law, Genocide and Other Crimes Against Humanity

SECTION 4. War Crimes. – For the purpose
of this Act, “war crimes” or “crimes against International Humanitarian
Law” means:
(a) In case of an international armed conflict, grave breaches of the
Geneva Conventions of 12 August 1949, namely, any of the following acts
against persons or property protected under the provisions of the
relevant Geneva Convention:
(1) Willful killing;

(2) Torture or inhuman treatment, including biological experiments;

(3) Willfully causing great suffering, or serious injury to body or
health:
(4) Extensive destruction and appropriation of property not justified
by military necessity and carried out unlawfully and wantonly;

(5) Willfully depriving a prisoner of war or other protected person of
the rights of fair and regular trial;
(6) Arbitrary deportation or forcible transfer of popularity or
unlawful confinement;
(7) Taking of hostages;

(8) Compelling a prisoner of war or other protected person to serve in
the forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or
other protected persons.

(b) In case of a non-international armed conflict, serious violations
of common Article 3 to the four (4) Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons taking
no active part in the hostilities, including members of the armed
forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause:

(1) Violence to life and person, in particular, willful killings,
mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court
affording all judicial guarantees which are generally recognized as
indispensable.

(c) Other serious violations of the laws and customs applicable in
armed conflict within the established framework of international law,
namely:

(1) Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities;

(2) Intentionally directing attacks against civilian objects, that is,
objects which are not military objectives;
(3) Intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive emblems
of the Geneva Conventions or Additional Protocol III in conformity with
international law;

(4) Intentionally directing attacks against personnel installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to
civilians or civilian objects under the international law of armed
conflict;
(5) Launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural
environment which would be excessive in relation to the concrete and
direct military advantage anticipated.
(6) Launching an attack against works or installations containing
dangerous forces in the knowledge that suck attack will cause excessive
loss of life, injury to civilians or damage to civilian objects, and
causing death or serious injury to body or health;

(7) Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings, which are undefended and which are not military
objectives, or making non-defended localities or demilitarized zones the
object of attack;

(8) Killing or wounding a person in the knowledge that he/she is
hors de combat, including a combatant who, having
laid down his/her arms or no longer having means of defense, has
surrendered at discretion;
(9) Making improper use of a flag of truce, of the flag or the
military insignia and uniform of the enemy or of the United Nations, as
well as of the distinctive emblems of the Geneva Conventions or other
protective signs under International Humanitarian Law, resulting in
death, serious personal injury or capture;
(10) Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives. In case of doubt
whether such building or place has been used to make an effective
contribution to military action, it shall be presumed not to be so
used;

(11) Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any kind,
or to removal of issue or organs for transplantation, which are neither
justified by the medical, dental or hospital treatment of the person
concerned nor carried out in his/her interest, and which cause death to
or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;

(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy’s property unless such
destruction or seizure is imperatively demanded by the necessities of
war;

(15) Pillaging a town or place, even when taken by assault;
(16) Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved
or imperative military reasons so demand;

(17) Transferring, directly or indirectly, by the occupying power of
parts of its own civilian population into the territory it occupies, or
the deportation or transfer of all parts of the population of the
occupied territory within or outside this territory;
(18) Committing outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(19) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence
also constituting a grave breach of the Geneva Conventions or a serious
violation of common Article 3 to the Geneva Conventions;
(20) Utilizing the presence of a civilian or other protected person to
render certain points, areas or military forces immune from military
operations;

(21) Intentionally using starvation of civilians as a method of
warfare by depriving them of objects indispensable to their survival,
including willfully impeding relief supplies as provided for under the
Geneva Conventions and their Additional Protocols;

(22) In an international armed conflict, compelling the nationals of
the hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent’s service
before the commencement of the war:

(23) In an international armed conflict, declaring abolished,
suspended or inadmissible in a court of law the rights and actions of
the nationals of the hostile party;
(24) Committing any of the following acts;

(i) Conscripting, enlisting or recruiting children under the age of
fifteen ( 15) years into the national armed forces;
(ii) Conscripting, enlisting or recruiting children under the age of
eighteen (18) years into an armed force or group other than the national
armed forces; and

(iii) Using children under the age of eighteen (18) years to
participate actively in hostilities; and
(25) Employing means of warfare which are prohibited under
international law, such as:

(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such
as bullets with hard envelopes which do not entirely cover the core or
are pierced with incisions; and

(iv) Weapons, projectiles, and material and methods of warfare which
are of the nature to cause superfluous injury or unnecessary suffering
or which are inherently indiscriminate in violation of the international
law of armed conflict.

Any person found guilty of committing any of the acts
specified
herein shall suffer the penalty provided under Section 7 of this Act.

SECTION 5. Genocide. — (a) For the
purpose of this Act,
“genocide” means any of the following acts with intent to destroy in
whole or in part, a national ethnic, racial, religious, social or any
other similar stable and permanent group as such:
(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the
group;

(3) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group;
and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly
incite others to commit genocide.

Any person found guilty of committing any of the acts
specified in
paragraphs (a) and (b) of this section shall suffer the penalty
provided under Section 7 of this Act.

SECTION 6. Other Crimes Against Humanity —
For the purpose
of this Act, “other crimes against humanity” means any of the following
acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:

(a) Willful killing;

(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;

(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity;

(h) Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender, sexual
orientation or other grounds that are universally recognized as if
permissible under international la w, in connection with any act
referred to in this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid, and

(k) Other inhumane acts of a similar character intentionally causing
great suffering or serious injury to body or to mental or physical
health.

Any person found guilty of committing any of the acts
specified
herein shall suffer the penalty provided under Section 7 of this
Act.

^[286]
Republic Act No. 9851 (2009), sec. 3(s).

^[287] Republic Act No. 9745 (2009), sec. 3(a) provides:

SECTION 3. Definitions. — For purposes of
this Act, the following terms shall mean:
(a) “Torture” refers to an act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him/her or a third person information or
a confession; punishing him/her for an act he/she or a third person has
committed or is suspected of having committed; or intimidating or
coercing him/her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a person
in authority or agent of a person in authority. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions[.]

^[288]
Republic Act No. 9851 (2009), sec. 4.

^[289] Republic Act No. 9851 (2009), sec. 6.

^[290] Republic Act No. 9851 (2009), sec. 10
provides:

SECTION 10. Responsibility of Superiors. –
In addition to
other grounds of criminal responsibility for crimes defined and
penalized under this Act, a superior shall be criminally responsible as a
principal for such crimes committed by subordinates under his/her
effective command and control, or effective authority and control as the
case may be, as a result of his/her failure to properly exercise
control over such subordinates, where:
(a) That superior either knew or, owing to the circumstances at the
time, should have known that the subordinates were committing or about
to commit such crimes.

(b) That superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.

^[291]
Boac v. Cadapan, 665 Phil. 84 (2011) [Per J. Carpio
Morales, En Banc].

^[292] Id. at 112-113.

^[293] J. Carpio, Dissenting Opinion in
Bayan Muna v. Romulo, 656 Phil. 246, 325-329 (2011)
[Per J. Velasco, Jr., En Banc].

^[294] Rollo (G.R. No. 238875),
pp. 723-724.