Affirmative

Your honors, this representation seeks to prove the legal justifications which allow the
President to unilaterally withdraw from an international agreement. With the case that I
am going to build, it would be very clear that the action subject to this debate is
practicable and doable under existing laws.

I am very sure that the other side would argue that impliedly, consent of the Congress is
necessary to withdraw from a unilateral agreement which has been concurred by the
Senate pursuant to Section 21, Article VII of the 1987 Constitution which states 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”. But a careful deliberation of this
provision would tell us that the concurrence is only necessary insofar as the validity of
the treaty is concerned and in no manner should it be construed as amounting to
ratification.

While many times in our constitution, concurrence of the Congress has been taken to
be ratification, a deeper study would tell us that it is essentially an executive act
specifically for international agreements. In fact, it is very evident under Executive Order
No. 459 which provides for the guidelines in the negotiation of international agreements
and its ratification that treaties are ratified by the President, and to quote under Section
7, subsection B, Paragraph 2 “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”.

Pimentel v. Executive Secretary

“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”.

Ratification subsumes the consent of the state and it is what is needed to bind the
country to the agreement, not the concurrence of the Senate. It is therefore sufficient
and proper to invalidate the contention that being a signatory of the state is a dual act of
the executive and the legislative and therefore implies that withdrawal should be done in
the same manner. Your honors, it is very clear from the statements of law which I
expounded that entering into an agreement is a unilateral act by the executive and
therefore, it possesses the sole prerogative on the obligations attached to it. Clearly
then, the President may withdraw from a treaty by himself alone.
And indeed, as decided in the case of Vinuya v. Romulo, quoting the case of US v.
Curtiss-Wright export Corp “the President should be free from statutory restrictions, in
the case at hand Section 21, Article VII, especially when domestic affairs alone are
involved.

But proceeding to a more important note, the withdrawal from the ICC is just a formality
of dishonoring the treaty on ground that it did not really become effective at all and not
really a repeal as the other side may argue. Under the well-established principles of
international law specifically the theory of dualism, a translation of an international law
into a national law is required and without such translation, the international law ceases
to exist. This is called incorporation whereby a country subjects itself into an
international agreement by enacting a domestic legislation. Indeed, the Rome Statute
which created the International Criminal Court contains provisions which require
promulgation of laws which would practically implement it in the Philippines. What we
only know is the ICC is the last resort, but even this is not enshrined in any law.

Absent this, it is clear and convincing that the Rome Statute never had an effect at all.
Even though it was ratified by the President and concurred by the Senate, it lacks the
requirement of an effective incorporated international law. Thus, the withdrawal of the
President is not really an abrogation of law for there was no domestic law to abrogate
from the very beginning. Moreover, when a state withdraws from a treaty, the latter
remains to be in force, for what is withdrawn only is the concurrence of the country to
the statute.

Given all these, I am confident that we have well established our case. There is no law,
nor jurisprudence, that clearly settles the procedure for withdrawal from international
agreements. Even international laws do not provide for the necessity of parliamentary
approval on withdrawals from international agreements. Thus, when there is nothing
that bars the President from legally exercising his constitutionally vested powers, the
practicability of his act leaves no doubt.
Negative

All people should adhere to the rule of law and not even the President can bend the
rules for his convenience alone. He is bound to uphold both domestic and international
obligations under his office and cannot by himself alone evade the same in violation of
existing laws. He should be inspired by his constitutional duty imposed by Section 17,
Article VII of the Constitution to faithfully execute the laws of the nation.

Your honors, this representation would strengthen the case of the negative side by
proving that the President’s unilateral withdrawal from the international agreement
concurred by the Senate cannot in any manner be allowed under our legal system.

It is true that there has been no law, nor jurisprudence, that clearly settles the procedure
for withdrawal from international agreements. Even international laws do not provide for
the necessity or non-necessity of parliamentary approval on withdrawals from
international agreements. Absent this and a provision in the Rome Statute, the treaty
subject this debate, and as held on Democratic Alliance v. Minister of International
Relations and Cooperation in the jurisdiction of South Africa, any question of which
between the executive or legislative has to decide on withdrawal, the issue should be
resolved through domestic law.

Now, let me expound on two domestic law provisions which clearly do not allow the
President to unilaterally withdraw from an international agreement which has undergone
the concurrence of the Congress.

First, allow me to bring your attention to Section 21, Article VII of the 1987 Constitution
which states 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”. While it is
true that the provision only speaks of the legal requirement for the ratification of a treaty
through concurrence of the Senate, there should be no doubt that in the absence of a
provision to that effect, it is legally acceptable and logical to accept that the reverse
process which is withdrawal should be subject to the same democratic process.

For this purpose, it would help to examine the respective roles of the two parties.
Executive Order No. 459 provides for the guidelines in the negotiation of international
agreements and its ratification. Under Section 7, subsection B, Paragraph 2, the
delineation of the executive and legislative is clearly defined and I quote “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”.

Your honors, it is our contention that once the executive subjects its power of ratification
for the concurrence of the legislative, executive prerogative ceases to operate. Having
submitted the treaties for the concurrence of the Senate, the President acknowledged
the indispensable participation and consent of the legislative in effecting the law and in
effect results to sharing of duties and obligations between the two branches. Needless
to say, the treaty once shared by the executive and legislative is already a subject for
checks and balances which is naturally required by the separation of powers.

Clearly, proper construction of the Section 21 of Article VII would tell us that the
legislative retains its power to determine the necessity and grounds for the withdrawal of
a treaty which has been ratified through its concurrence, not to mention, through its
consent. And if therefore this gives rise to the prerogative of the Congress as well
whether or not to remain bound with the treaty, it would be a clear culpable violation of
the Constitution if the President insists to withdraw unilaterally.

Secondly, separation of powers is the spirit of democracy. This representation would

like to remind the executive your honors of the clear provision of Article VI, Section 1 of
the Constitution which reads “The Legislative Power shall be vested in the Congress of
the Philippines which shall consist of a Senate and House of Representatives, except to
the extent reserved to the people by the provision on initiative and referendum”

Under this provision, there are only three authors of legislative power, the original
legislative power of the people, the derivative legislative power of the Congress, the
exclusive legislative power of the people on initiative and referendum.

Constitutionalist Joaquin Bernas explains that legislative power is the authority to make
laws and to alter and repeal the same. Ladies and gentlemen, this legislative power is
plenary- full and unlimited. Vera v. Avelino “any power, deemed to be legislative by
usage and tradition, is necessarily possessed by the Congress, unless the organic act
has lodged it elsewhere”.

Your honors, the act of withdrawal from a treaty is clearly tantamount to abrogation and
repeal of law since by virtue of transformation, the international becomes part of the
municipal law. Clearly, repeal of laws is within the power of the Congress alone which
makes it more necessary for the President to get the concurrence of the Senate.

Undoubtedly, I have proven my case your honors and therefore, there can only be two
ways to make the Rome Statute ineffective in the Philippines; first, an executive act of
withdrawal concurred by the Senate or an express repealing law from the Congress.