ICC withdrawal challenged anew in SC

By Dane Angelo M. Enerio
THE SUPREME COURT received on Wednesday a second petition questioning the constitutionality of President Rodrigo R. Duterte’s decision to withdraw the Philippines’ membership from the Rome Statute of the International Criminal Court (ICC), this time by the non-government organization that helped lobby for the treaty’s ratification in the country.
In their 49-page petition, the Philippine Coalition for the International Criminal Court (PCICC) said, “the President gravely abused his discretion in an act tantamount to an absence or a lack or jurisdiction, when he unilaterally decided to withdraw the membership of the Philippines from the International Criminal Court, as his act violated the Constitutional system of checks and balances in treaty making under Art VII, Sec. 21 of the 1987 Charter, which prescribes a shared duty towards that end between the Executive and the Legislative branches of the government.”
Mr. Duterte, through Philippine Ambassador to the United Nations (UN) Teodoro L. Locsin, Jr., submitted before the international body its notice of withdrawal on March 16 in response to the ICC’s preliminary examination on Mr. Duterte’s alleged crimes against humanity committed under his administration’s drug war.
According to the PCICC, the withdrawal was done without the dismissal of Senate Resolution No. 546, which formally granted the accession of the Philippines to the Rome Statute on Aug. 23, 2011.
“No act of the Executive may invalidate this legislative act. It may only be recalled, cancelled, or voided by the Senate itself (unless this Honorable Court, on a petition to void it, declares it unconstitutional and illegal),” the petition read.
“[B]ecause Respondents intentionally failed to perform their constitutional duty to submit the question of withdrawal from the ICC to the Senate, Petitioners and the public were deprived of their right to take part in the public deliberations on the same hearing that would have taken place had the Upper House been engaged for the purpose,” it read further.
The PCICC added: “The President gravely abused his discretion in an act tantamount to an absence or lack of jurisdiction, when he unilaterally decided to withdraw the membership of the Philippines from the International Criminal Court, as his act is based on capricious, whimsical, ridiculous, misleading or misled, incoherent, and/or patently false grounds, with no basis in fact, law or jurisprudence.”
Responding to Mr. Duterte’s claim that the treaty was void because it was never published in the Official Gazette or any newspaper with a wide circulation, the PCICC said, “under the constitutional Doctrine of Transformations, there is no requirement of publication under Art. VII, Sec. 21 of the 1987 Charter for the Rome Statute to become effective and binding on the Philippines.”
According to the PCICC, “this is well established in Philippine constitutional adjudication.”
“Thus, clearly, it is specious to argue against the ICC by claiming for lack of publication in Philippine jurisdiction,” the group said, adding:
“This is a legal anomaly brought about by the Respondent’s unilateral act. And such unilateral act has grave legal consequences. It will mean citizens, including Petitioners, will not have a ready recourse to any effective mechanism that used to be there when the Philippines was still a party to the Rome Statute, for redress against cases of impunity should their own government become unable or unwilling to prosecute such cases of impunity.”
BusinessWorld reported on the filing of the first petition last May 16 by opposition Senators Francis N. Pangilinan, Franklin M. Drilon, Paolo Benigno A. Aquino IV, Leila M. De Lima, Risa Hontiveros-Baraquel, and Antonio F. Trillanes IV. The petition claimed Mr. Duterte’s withdrawal was unconstitutional as it did not pass through Congress.
Both petitions have Mr. Locsin, Foreign Secretary Alan Peter S. Cayetano, and Executive Secretary Salvador C. Medialdea as respondents, with Chief Presidential Legal Counsel Salvador S. Panelo being present only in the first petition.
Presidential spokesperson Harry L. Roque, Jr., responding also on Wednesday, said, “We reiterate that the President is the chief architect of the country’s foreign policy. The Constitution makes no mention that concurrence of the Senate is necessary to validate the Philippines’ withdrawal from the International Criminal Court.”“Again, this is not an issue that can be addressed by a certiorari. Hence, the courts must defer matters on foreign affairs to the Executive,” he also said.