Solgen justifies Philippines withdrawal from ICC

MANILA, Philippines (Updated 10:48 a.m.) — Senate concurrence is needed for entering into international treaties but not for withdrawing from them, which is at the discretion of the president.

This is the main argument of Malacañang in defending before the Supreme Court (SC) its withdrawal of the country’s membership in the International Criminal Court (ICC).

In a 52-page comment obtained by The STAR from the SC yesterday, Solicitor General Jose Calida asked the high court to dismiss the consolidated petitions filed by six opposition senators and Philippine Coalition for the International Criminal Court (PCICC) led by former Commission on Human Rights chair Loretta Rosales for lack of merit.

Arguing for the respondents Executive Secretary Salvador Medialdea, Foreign Affairs Secretary Alan Peter Cayetano, chief presidential legal counsel Salvador Panelo and Ambassador to the United Nations Teodoro Locsin Jr., Calida justified the notice sent by the government last March to the UN Secretary-General for withdrawal of its signature from the Rome Statute.

The top government lawyer argued on substantive grounds that such withdrawal from ICC was within the power of the President and did not violate the 1987 Constitution – contrary to allegations in the identical petitions.

Calida rebutted the main argument of petitioners that the Palace violated Article VII Section 21 of the Constitution, which requires concurrence of the Senate in international treaties. The provision specifically states that “entering into treaty or international agreement requires participation of Congress, that is, through concurrence of at least two-thirds of all the members of the Senate.”

Calida stressed that such provision and constitutional requirement applies only in ratification of new treaties and does not apply to withdrawal from treaties.

“Section 21, Article VII of the 1987 Constitution is likewise clear. Senate concurrence is only required when new international obligations are created in the form of treaties. The Philippines’ withdrawal from the Rome Statute does not create new obligations that would require the Senate’s involvement. Since the Constitution itself plots the boundaries of the Senate’s participation, there is no legal basis for petitioners’ theory that the concurrence is indispensable,” read the consolidated comment filed recently.

Calida said this provision in the Constitution is clear and does not need judicial interpretation.

“What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say,” he explained.

The solicitor general urged the SC to instead look at the power and duty of the President to conduct the country’s foreign affairs as head of state under Sections 1, 3 and 20 of the Administrative Code, calling the issue a political question beyond judicial review.

"The power to withdraw from a treaty is the sole prerogative of the President. The rationale for Senate concurrence in entering into treaties does not apply to withdrawal," he stressed.

Calida told the high tribunal that the withdrawal from the ICC was due to "unnecessary interference" by the ICC on internal affairs of the country "in violation of the complementarity principle and the primacy of national criminal jurisdiction."

He specifically cited the preliminary examination initiated by ICC prosecutor Fatou Bensouda last February on killings of thousands of drug suspects under the Duterte administration's war on drugs.

"The withdrawal from the Rome Statute promotes the Republic's paramount national interest, protects national sovereignty and preserves the judiciary's independence," Calida further argued.

Calida explained that the country's membership in the ICC is actually not necessary for the protection of human rights of Filipinos.

"Domestic laws, particularly R.A. 9851 (Philippine Act Against International Humanitarian Law, Genocides and Other Crimes Against Humanity), adequately provide protection to the Filipino people for violations under the Rome Statute and International Humanitarian Law," he said.

Apart from these substantive arguments, Calida also raised technical grounds in seeking the dismissal of the petitions.

He said the opposition senators have no legal standing to file the case in SC simply because of the lack of official stance of the Senate as a collegial body due to divided sentiment of senators on the issue. Senate Resolution 289, which sought to invoke Senate's concurrence to the withdrawal, was not passed and has actually been shelved.

The first petition was filed by Senators Kiko Pangilinan, Franklin Drilon, Leila de Lima, Bam Aquino, Antonio Trillanes IV and Risa Hontiveros.

As for the PCICC petition, he said it was filed out of time considering that the law provides for only 60 days from the assailed action to file the petition in couet, which means petitioners should have filed the case on or before May 16.

Lastly, Calida also argued that the assailed executive action was a "positive, discretionary and political act that is exclusively decided upon by the head of state" and therefore cannot be subject of petition for mandamus before the Court.

The SC is set to hear the case in oral arguments on August 28 at 2 p.m.