Proposition: Let it be resolved that the President may unilaterally withdraw from the Rome

Statute

The submission that the president may unilaterally withdraw from the International Criminal
Court because the provisions of the Constitution only provides for the accession or the
ratification and not withdrawal, should not be given credence.

First. The rule expressio unius est exclusio alterius will not apply and the doctrine of necessary
implication shall control. The Supreme Court in the case of Chua v. CSC, recognized the
doctrine of necessary implication which holds that: No Statute can be enacted that can provide
all the details involved in its application. There is always an omission that may not meet a
particular situation. What is thought, at the time of enactment, to be an all-embracing legislation
may be inadequate to provide for the unfolding events in the future. So-called gaps in the law
develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is
the doctrine of necessary implication. The doctrine states that what is implied in a statute is as
much a part thereof as that which is expressed. Every statute is understood, by implication, to
contain all such provisions as may be necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it grants, including all such collateral
and subsidiary consequences as may be fairly and logically inferred from its terms. Ex
necessitate legis. And every statutory grant of power, right or privilege is deemed to include all
incidental power, right or privilege. This is so because the greater includes the lesser, expressed
in the Maxim, in eo plus sit, simper inest et minus. The contention that there is no need for
Senate concurrence in the withdrawal because the Constitution does not expressly provide for it
is bereft of legal basis. As penned by Justice Fernando in his concurring opinion in the case of
Aquino v. COMELEC, following the phraseology of Tomas Reed Powell, the Constitution is not
silently silent, but silently vocal. If the framers did really intend to grant the president the
prerogative to unilaterally withdraw from a treaty, they should have explicitly included it his
constitutionally-granted powers.

Second. The unilateral withdrawal of the president from a treaty will violate the doctrine of
Checks and Balances. No less than the Constitution under Art. VII Sec. 21, provides that the
Senate, in order for the treaty to become binding and effective, must concur with at least two
thirds of its members. Hence, the authority of the Executive to enter into a treaty with other
States is subject to the concurrence of the Senate in order for that specific treaty to have binding
effect in our country. No person, not even the President, may take away what the Constitution
had expressly provided. In the case of Saguisag v. Ochoa, the court, through the ponencia of
Justice Sereno, wrote that: Clearly, the power to defend the State and to act as its representative
in the international sphere inheres in the person of the President. This power, however, does not
crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires.
As previously mentioned, the Senate has a role in ensuring that treaties or international
agreements the President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its members. Thus, this Executive action, is
subject to the “checking” of the Senate. To deprive them then, of taking action in the withdrawal
procedure will constitute a violation of the Doctrine of Checks and Balances because it strips the
Senate of their right to take part in the concerns of the treaty.

Third. Such unilateral withdrawal violates the Faithful Execution clause of the Constitution. As
included in the Oath of Office of the President under Art. VII Section 5, he swore to preserve and
defend the Constitution and execute its laws. Hence, as Chief Executive of the country, he has
sworn to execute and implement the law and not to abrogate or repeal it. The Rome Statute
became part of the law of the land by Doctrine of Transformation when Congress enacted
Republic Act 9851 which penalizes international crimes as those provided in the Statute which
created the International Criminal Court. When this law was enacted and made effective, it forms
part of the law of the land which, the President had sworn to uphold and execute. Under the
Faithful Execution clause, the President is mandated to implement and execute the laws, and not
to abrogate it. In the case of Philippine Association of Service Exporters, Inc. (Pasei) vs.
Secretary of Labor and Employment, the Supreme Court held that the chief executive is
constitutionally bound to ensure that the laws be faithfully executed.

Finally, to disregard the Senate in the withdrawal process from a treaty to which they concurred
in, in order to become effective, would be illogical. The framers of the Constitution, on the first
place, should not have included the Senate in the accession process if they did not deem it
necessary to include them in the whole procedure. To include them on the starting process but
eventually cut them in the middle and disregard them in the withdrawal is just illogical.