CASE

MUNICIPAL & INTERNATIONAL LAW

Art. VII 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.
Art. VIII Section 4.
(2) All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme Court en
banc, and all other cases which under the Rules of Court are required to be
heard en banc, including those involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the concurrence of a
majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon.

CASE 5
G.R. No. 158088 July 6, 2005
SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL
COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON
JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G.
DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE
CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA
ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE,
Respondents.
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FACTS:
The Rome Statute established the International Criminal Court which "shall
have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern xxx and shall be complementary to the national
criminal jurisdictions." Its jurisdiction covers the crime of genocide, crimes
against humanity, war crimes and the crime of aggression as defined in the
Statute. The Philippines signed the Statute on December 28, 2000 through
Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United
Nations. Its provisions, however, require that it be subject to ratification,
acceptance or approval of the signatory states.
The instant petition seeks mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of
the Rome Statute of the International Criminal Court to the Senate of the
Philippines for its concurrence in accordance with Section 21, Article VII of the
1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both
domestic law and international law, is a function of the Senate. Hence, it is the
duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to
ratification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would defeat the object
and purpose of a treaty when they have signed the treaty prior to ratification
unless they have made their intention clear not to become parties to the
treaty.
The Office of the Solicitor General, commenting for the respondents,
questioned the standing of the petitioners to file the instant suit. It also
contended that the petition at bar violates the rule on hierarchy of courts.
On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate
for concurrence.
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his
legal standing to file the suit as member of the Senate; Congresswoman
Loretta Ann Rosales, a member of the House of Representatives and
Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the
Rome Statute; the Task Force Detainees of the Philippines, a juridical entity
with the avowed purpose of promoting the cause of human rights and human
rights victims in the country; the Families of Victims of Involuntary
Disappearances, a juridical entity duly organized and existing pursuant to
Philippine Laws with the avowed purpose of promoting the cause of families
and victims of human rights violations in the country; Bianca Hacintha Roque
and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time
of filing of the instant petition, and suing under the doctrine of inter-
generational rights enunciated in the case of Oposa vs. Factoran, Jr.; and a
group of fifth year working law students from the University of the Philippines
College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.
ISSUE:
WHETHER OR NOT THE SENATE HAS THE POWER TO REQUIRE THE
TRANSMITTAL OF THE SIGNED COPY OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT FOR ITS CONCURRENCE IN
ACCORDANCE WITH SECTION 21, ARTICLE VII OF THE 1987
CONSTITUTION
RULING:
A petition for mandamus may be filed 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. We have
held that to be given due course, a petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. The petitioner in every case must therefore be an
aggrieved party in the sense that he possesses a clear legal right to be enforced
and a direct interest in the duty or act to be performed. The Court will exercise
its power of judicial review only if the case is brought before it by a party who
has the legal standing to raise the constitutional or legal question. "Legal
standing" means a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the government
act that is being challenged. The term "interest" is material interest, an interest
in issue and to be affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.
It is the finding of the court that among the petitioners, only Senator Pimentel
has the legal standing to file the instant suit. The other petitioners maintain
their standing as advocates and defenders of human rights, and as citizens of
the country. They have not shown, however, that they have sustained or will
sustain a direct injury from the non-transmittal of the signed text of the Rome
Statute to the Senate. Their contention that they will be deprived of their
remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws
and courts. Sufficient remedies are available under our national laws to protect
our citizens against human rights violations and petitioners can always seek
redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that "to the extent the powers of
Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that
institution." Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any official action which they
claim infringes their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty entered
into by the executive branch, in this case, the Rome Statute. The petition seeks
to order the executive branch to transmit the copy of the treaty to the Senate
to allow it to exercise such authority. Senator Pimentel, as member of the
institution, certainly has the legal standing to assert such authority of the
Senate.
As to whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of the Rome Statute.
The core issue in this petition for mandamus is whether the Executive
Secretary and the Department of Foreign Affairs have a ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a member of
the Philippine Mission to the United Nations even without the signature of the
President. We rule in the negative.
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of the 1987 Constitution
provides that "no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the
Senate." The 1935 and the 1973 Constitution also required the concurrence by
the legislature to the treaties entered into by the executive.
The participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of foreign
relations. By requiring the concurrence of the legislature in the treaties
entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity and
growth.
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987
Constitution to mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-
making process in this wise: The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange of the instruments of
ratification. The treaty may then be submitted for registration and publication
under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now
usually assigns this task to his authorized representatives. These
representatives are provided with credentials known as full powers, which
they exhibit to the other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even "collapse" in case the parties
are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same
is opened for signature. This step is primarily intended as a means of
authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate the final consent of
the state in cases where ratification of the treaty is required. The document is
ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his
own state.
Ratification, which is the next step, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representatives. The
purpose of ratification is to enable the contracting states to examine the treaty
more closely and to give them an opportunity to refuse to be bound by it
should they find it inimical to their interests. It is for this reason that most
treaties are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the instruments
of ratification, which usually also signifies the effectivity of the treaty unless a
different date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine
representative with ratification. It should be underscored that the signing of
the treaty and the ratification are two separate and distinct steps in the treaty-
making process. As earlier discussed, the signature is primarily intended as a
means of authenticating the instrument and as a symbol of the good faith of
the parties. It is usually performed by the state’s authorized representative in
the diplomatic mission. Ratification, on the other hand, is the formal act by
which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the
head of the state or of the government. Thus, Executive Order No. 459 issued
by President Fidel V. Ramos on November 25, 1997 provides the guidelines in
the negotiation of international agreements and its ratification. It mandates
that after the treaty has been signed by the Philippine representative, the
same shall be transmitted to the Department of Foreign Affairs. The
Department of Foreign Affairs shall then prepare the ratification papers and
forward the signed copy of the treaty to the President for ratification. After the
President has ratified the treaty, the Department of Foreign Affairs shall submit
the same to the Senate for concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs shall comply with the provisions
of the treaty to render it effective. (See Section 7 of Executive Order No. 459).
Petitioners’ submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the representatives of the states be
subject to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf, a
state expresses its willingness to be bound by the provisions of such treaty.
After the treaty is signed by the state’s representative, the President, being
accountable to the people, is burdened with the responsibility and the duty to
carefully study the contents of the treaty and ensure that they are not inimical
to the interest of the state and its people. Thus, the President has the
discretion even after the signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would
be pointless and futile. It has been held that a state has no legal or even moral
duty to ratify a treaty which has been signed by its plenipotentiaries. There is
no legal obligation to ratify a treaty, but it goes without saying that the refusal
must be based on substantial grounds and not on superficial or whimsical
reasons. Otherwise, the other state would be justified in taking offense.
It should be emphasized that under our Constitution, the power to ratify is
vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should
not be taken lightly, such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot issue the writ
of mandamus prayed for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
Petitions DISMISSED.