Sans Supreme Court action, withdrawal from ICC to take effect

MANILA, Philippines — The country’s withdrawal from the International Criminal Court (ICC) officially takes effect on Sunday in the absence of intervention from the Supreme Court (SC) sought by opposition senators.

The high court failed to resolve the consolidated petitions filed by six opposition senators and the Philippine Coalition for the International Criminal Court (PCICC) before the ICC withdrawal officially takes effect on March 17.

The SC justices did not tackle the case in their regular session yesterday, sources said.

The petitions of Senators Francis Pangilinan, Franklin Drilon, Leila de Lima, Bam Aquino,  Antonio Trillanes IV and Risa Hontiveros, and the PCICC led by former Commission on Human Rights chair Loretta Rosales sought the issuance of a writ of mandamus that would compel Malacañang to take back the withdrawal of its ratification of the Rome Statute.

The statute is a treaty of the United Nations that created the ICC.

An insider, who requested anonymity for lack of authority to speak for the court, said the absence of any restraining order from the high tribunal means the withdrawal of the Philippine government from the ICC could take effect as scheduled.

“The withdrawal from ICC takes effect, without prejudice to the Supreme Court resolving the petitions later on and ruling on the prayer for issuance of writ of mandamus,” the source said.

Petitioners questioned the withdrawal by the Duterte administration of the government’s ICC membership, alleging that it violated the Constitution that requires ratification of treaties and international agreements by the Senate.

They cited Article VII, Section 21 of the 1987 Constitution, which states that entering into treaty or international agreement requires participation of Congress through concurrence of at least two-thirds of all members of the Senate.

Solicitor General Jose Calida defended the Philippine withdrawal from ICC and asked the SC to dismiss the petitions for lack of merit.

Calida said the SC no longer has jurisdiction over the matter as the ICC accepted the Philippine withdrawal last year.

He said the withdrawal from ICC was within the power of the President and did not violate the 1987 Constitution.

Calida refuted the petitioners’ claim that the Palace violated the Constitution.

He said such provision and constitutional requirement applies only to the ratification of new treaties and does not apply to withdrawal from treaties.

He assailed the petitions for citing rulings of South African and United Kingdom Supreme courts on similar cases, which he said are inapplicable in Philippine jurisprudence.

Calida said the move to withdraw from ICC membership under the Rome Statute was justified in the preliminary examination by the ICC on the alleged extrajudicial killings in the country despite “existing and functioning mechanisms to investigate and prosecute cases of extrajudicial killings.”

As to procedural grounds, Calida said the SC could not exercise its power of judicial review over the ICC withdrawal, which is a political decision of the executive branch.

He said the petitioners lack legal standing in seeking relief from the high tribunal.

Calida said the petition did not have the official stance of the Senate as a collegial body as the senators have different sentiments on the issue. 

He cited a resolution invoking the Senate’s concurrence on the withdrawal, but was not passed and has been shelved.

President Duterte last year announced the government’s withdrawal from the Rome Statute.

In its diplomatic note to the United Nations secretary general, the government explained that the “decision to withdraw is the Philippines’ principled stand against those who politicize and weaponize human rights, even as its independent and well-functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect the people.”

Duterte cited what he described as “baseless, unprecedented and outrageous attacks” against him and his administration as the reason for the withdrawal.

Justice Secretary Menardo Guevarra said the ICC could not investigate and prosecute Duterte over the killings and alleged human rights violations under his administration’s war on drugs.

Guevarra said the President need not respond to the charges filed against him before the ICC.

He said that apart from the government’s withdrawal from the ICC, the UN body could not have jurisdiction of the cases because the justice system in the country is still working.