Leonen: President can cancel ICC treaty

SINGAPORE — The final hearing last Oct. 9 on Senate concurrence in treaty terminations was the strangest and most boring in recent Supreme Court history. Justice Marvic Leonen asked questions for 50 minutes. Acting Chief Justice Antonio Carpio took another seven. No other justice spoke.

Petitioners argue the Constitution requires Senate concurrence when terminating a treaty — here the Rome Statute of the International Criminal Court — not just when entering into one. The second hearing saw Leonen relentlessly raise an Infinity Gauntlet of substantive and procedural counterarguments, with former party-list representative Barry Gutierrez and Centerlaw’s Romel Bagares and Gilbert Andres holding firm.

Carpio and Justices Francis Jardeleza and Alfredo Caguioa gently argued in favor. Others explored Leonen’s arguments.

Strangely, Gutierrez joined late, in the second hearing. Centerlaw’s youngest member Gil Anthony Aquino, for petitioner Integrated Bar of the Philippines, joined only the final hearing, too late to speak.

The final hearing was Solicitor General Jose Calida’s turn to rebut them. But after Leonen already raised every conceivable counter, we only wondered if he held the last Infinity Stone.

Echoing this column, Leonen reframed that the two narrow issues are whether (1) our Constitution requires concurrence and (2) the Supreme Court even has jurisdiction. Everything else is irrelevant.

(He raised a multitude of peripheral points, anyway.)

Leonen very aggressively claimed only the Senate as a body may sue, not individual senators represented by Gutierrez, and a resolution signed by 14 of 23 senators is not enough basis.

He argued withdrawal is a “political question” left to the president. For him, classic US decision Baker vs Carr clearly recognizes a political question in potential international embarrassment, such as a Philippine ruling that cannot bind the United Nations and other countries that accepted a withdrawal.

He added the Philippines abhors dictatorships so unelected justices should not dictate political decisions.

Leonen’s remedy is to sign the treaty afresh.

On substance, he rebuffed Gutierrez’s innovative argument that withdrawal for arbitrary grounds violates pacta sunt servanda, the requirement to honor international obligations in good faith. He countered treaties themselves provide withdrawal mechanics so using these is surely in good faith.

Leonen also claims a treaty can conflict with a domestic statute so it makes sense for only the executive branch to have the power to withdraw from a treaty.

Calida argued domestic court rulings requiring concurrence, such as when South Africa withdrew from the Rome Statute and when the United Kingdom withdrew from the European Union, come from different systems and do not apply.

He added we borrow from US thinking, and Goldwater and other US decisions imply concurrence is not required.

Leonen seemed lighthearted. Calida said yes to all his questions and teased that the petitions are a “legal abomination,” quoting his quo warranto case dissent, which criticized every side there.

Leonen teased back, asking if Calida now accepted that dissent against his last petition.

Leonen even made fun of his using more airtime than all the other justices combined. He announced his last set of questions would take three hours, then added, “just kidding.”

Carpio never jokes. He made Calida agree that if a law and a subsequent treaty conflict, the latter prevails. He posits a treaty is on par with a statute, and cannot be withdrawn without legislative concurrence.

Carpio also made Calida disclaim the theory that the Rome Statute is void because it was not published in a newspaper pursuant to our Civil Code.

Three hearings and an infinity of belabored peripheral arguments later, we have a genuinely open constitutional question. All agree there is nothing explicit in the Constitution on withdrawal. It remains difficult to guess how many justices will vote with Leonen.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.