Petitioner insists Senate approval required for ICC withdrawal

MANILA, Philippines — The counsels for the Philippine Coalition for the International Criminal Court on Tuesday asserted that the Duterte administration-initiated withdrawal from the Rome Statute of the ICC is invalid due to lack of concurrence from the Senate.

This, despite the silence of the present charter on this issue.

Article VII, Section 21 of the 1987 Constitution 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.

Associate Justices Lucas Bersamin, Noel Tijam and Francis Jardeleza raised the silence of the Constitution on the upper chamber’s part in the withdrawal of a treaty during the oral arguments on the consolidated petitions challenging the withdrawal from the international tribunal.

“We’re all very clear now that the language of the Constitution particularly Article VII, Section 21 relates only to ratification. It does not mention at all the termination or withdrawal of the state party to the treaty it accedes to,” Bersamin said.

He added that the Section 101 of Senate Rule 36 does not also provide procedure for termination or withdrawal of any treaty.

The counsels of the petitioner argued that since the Rome Statute is a treaty validly entered into by the Philippines and has the same status as a law enacted by Congress, withdrawal from the Rome Statute needs the approval of at least two-thirds of all members of the Senate.

“If the Senate concurs by two-thirds of votes of all its members so it’s valid and effective under our constitutional mechanism. Hence, the reverse is also true. If the president withdraws from a treaty such as the Rome Statute then it also needs the concurrence of the Senate,” lawyer Gilbert Andres said.

During the earlier interpellation with Senior Associate Justice Antonio Carpio, PCICC lead counsel Romel Bagares said that the “silence there of the text does not mean that the converse cannot be said as a principle that is also applicable.”

Bagares added: “The act of withdrawing from the treaty is not the sole province of the president because in the concurrence to the [approval] of the treaty, action has been shared to the Senate.”

The lack of Senate concurrence in the termination of the treaty was also one of the main arguments raised in the petition of opposition senators Francis Pangilinan, Franklin Drilon, Bam Aquino, Leila de Lima, Risa Hontiveros and Antonio Trillanes IV

The upper house—with 17 affirmative votes and one negative vote courtesy of former Senate President Juan Ponce Enrile—approved the ratification of the Rome Statute, the treaty which established the ICC in April 2011. It was earlier ratified by then-President Benigno Aquino III.

READ: ICC pullout will scrap Filipinos’ protection under int’l law — petitioner

Senate resolution

In his interpellation, Associate Justice Marvic Leonen raised the point that Senate Resolution 289 has not been approved in the upper house.

The resolution expresses the sense that the upper chamber should have a say when a treaty or international agreement concurred in by the Senate is terminated.

But the measure has yet to be adopted and is non-binding after Sen. Manny Pacquaio, an ally of the president, blocked the measure.

“Might it not be better for this court to wait until the Senate does its own reading of the Constitution?” Leonen raised.

Leonen also said: “The court may not want to become the judicial dictator of this country over extending its powers to realms which might be political in nature rather than legal.”

READ: Can the Philippines leave the ICC without Senate concurrence?