05 Pimentel Jr.

vs Office of the Executive Secretary

G.R. No. 158088 (July 6, 2005)
Puno, J. / jrp w minor edits by kam

Subject Matter: International Law and Philippine Law

Summary: The Philippines signed the Rome Statute, an international treaty thru an official mission or representative. It is not
yet signed by the President but the petitioners are already compelling the Executive Department to transmit it to the Senate
for ratification for they believe that the signature of the official mission is already equivalent to President’s approval and that
the ratification is the power of the Senate.

The SC held that ratification is the power of the Executive thru the President but nonetheless concurrence of the Senate is still
required. The SC also held that the President has the power to refuse to submit a treaty for ratification of the Senate even if it is
already signed by an official representative. SC also discussed the process on how a treaty becomes effective and that signing a
treaty is only a part of the process and will not bind the parties to follow the provision of the treaty as it still needs to be
ratified.

Doctrines:
 The power to ratify treaties is vested in the President but it is subject to the concurrence of the Senate.
 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.

 Signing a treaty is not equivalent to ratification. The State can still exercise discretion whether or not to ratify
a treaty even it is already signed by an official representative. The signature is only a symbol of good faith and
not a final consent.

Parties:
Petitioners 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
Respondents Office of the Executive Secretary, represented by Hon. Alberto Romulo, and the Department of Foreign
Affairs, represented by Hon. Blas Ople

Facts: This is a petition for mandamus filed by petitioners 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.

 The Rome Statute was opened for signature for states from July 17, 1998 until December 31, 2000.
 This Statute establishes the International Criminal Court (ICC) which “shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern (e.g. the crime of genocide, crimes against humanity,
war crimes, the crime of aggression, etc.). It shall also be complementary to the national criminal jurisdictions.
 Dec. 28, 2000 - The Philippines signed the Statute thru Enrique Manalo, Charge d’ Affairs of the Philippine Mission to the
UN. However, its provisions still require ratification, acceptance or approval of the signatory states.

Special civil action in the Supreme Court (current petition)

 Petitioners filed this petition for Mandamus to compel the Office of the Executive Secretary and the Department of
Foreign Affairs (DFA) to transmit the signed treaty to the Senate for Ratification.
 Petitioners believe that in accordance with Section 21, Article VII of the 1987 Constitution, the ratification of the treaty
is a function of the Senate and hence the Executive must transmit it to allow the Senate to exercise its discretion.
 Moreover, petitioners believe that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and
customary international law. Their basis for this is the Vienna Convention of the Law of Treaties which enjoins 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.

Issue: WON the Office of the Executive Secretary and DFA have a ministerial duty to transmit to the Senate the Rome Statute
which is already signed by a Philippine Mission although it is not yet signed by the President? (NO)

Ratio:
The President under the Philippine system of government is the sole organ and authority in external relations and is the sole
representative with foreign nations. However, in accordance with the Constitution, for an international agreement signed by
him to be valid and effective it would require the concurrence of 2/3 of all the members of the Senate.

Petitioners though interpret this Constitutional provision differently and incorrectly, in the sense that it is not just to check the
President’s power but that the ratification process as a whole is the power of the Senate. They also think that the signing of the
treaty is already equivalent to ratification.

The treaty making process according to Justice Isagani Cruz has four distinct processes namely:
1. Negotiation - may be undertaken by the President or his representatives.
2. Signature - starts when parties agree to the terms of the agreement, authentication and symbol of good faith of the
parties but it is not equivalent to a final consent.
3. Ratification - act thru which a state confirms and accepts the provisions of a treaty. Its purpose is to allow the parties
to examine the treaty more closely. Normally done by a Government body different from the Negotiating body.
4. Exchange of Instruments of Ratification- signifies effectivity of the treaty.

The treaty making process in the Philippines is governed by EO 459 issued by President Ramos. It states that once treaty is
signed, it is transmitted to the DFA President Senate DFA again to officially render it effective.

The SC holds that the President still has discretion to ratify the treaty or not even if it is already signed by Government
authorities. Moreover, under the Vienna Convention, the state has no legal or moral duty to automatically ratify a treaty upon
signing of its representatives. To clarify further, the power to ratify treaties is vested in the President but it subject to the
concurrence of the Senate. Hence, the President may either refuse to submit a signed Treaty to the Senate or even after
concurrence of the Senate, change his mind and refuse to ratify it.

In sum, the decision is within the competence of the President and it cannot be encroached by the Court via a writ of
mandamus. The Court has no jurisdiction to enjoin the President in the performance of this official duty.

DISPOSITIVE: Petition DISMISSED. It is beyond SC’s jurisdiction to compel the executive branch to transmit the signed text of
Rome Statute to the Senate.

OTHER REMARKS:

Legal standing to file this suit

Among the petitioners, only Senator Aquilino Pimentel Jr. was granted legal standing to file the suit. The others were not able
to show 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.

Interesting Fact: Bianca Roque and Harrison Roque are among the petitioners in this case. They are aged two and one
respectively. They relied on the Oposa v Factoran, Jr. Doctrine but the court ultimately did not consider that they have legal
standing on this case.