Solgen justifies Phl withdrawal from ICC

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 twothirds 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.