6 senators ask SC to void PHL withdrawal from ICC sans Senate nod

Opposition senators on Wednesday asked the Supreme Court (SC) to declare "invalid" the Philippines' withdrawal from the Rome Statute of the International Criminal Court (ICC) without the concurrence of at least two-thirds of the Senate.

Senators Francis Pangilinan, Franklin Drilon, Paolo Benigno Aquino IV, Leila de Lima, Risa Hontiveros, and Antonio Trillanes IV asked the high tribunal to declare "invalid or ineffective" Manila's formal backing out from the war crime court absent the Senate's agreement.

They also asked the SC to compel the Department of Foreign Affairs and the Philippine Permanent Mission to the United Nations (UN) to notify the UN secretary-general that the country's executive department was "cancelling, revoking or withdrawing its Instrument of Withdrawal" received on March 17.

This instrument, they said, was inconsistent with Philippine law.

"Given the dangerous consequences of the present case, the Honorable Court has the duty to apply the Constitution by declaring that the withdrawal from the Rome Statute requires the concurrence of at least two-thirds of all the members of the Senate," the petition for certiorari and mandamus said.

"It is incumbent upon the Honorable Court to exercise this constitutional mandate to avoid a situation, now and in the future, where the Executive may upend some of the most basic norms of our legal system at his or her own behest," it added.

Named respondents in the petition were Foreign Affairs Secretary Alan Peter Cayetano, Executive Secretary Salvador Medialdea, Philippine Ambassador to the United Nations Teodoro Locsin Jr, and Presidential Legal Adviser Salvador Panelo.

On March 14, President Rodrigo Duterte announced that the Philippines was withdrawing from the ICC, which is currently examining whether or not it has jurisdiction to investigate him and several of his senior officials for crimes against humanity in connection with his presidency's deadly anti-drug campaign.

Duterte has previously said the ICC has no jurisdiction over him.

However, a withdrawal from the international court — which takes effect a full year after formal notification — will not eliminate ongoing proceedings against Duterte.

'Executive can't repeal a law'

Assailing the withdrawal, the opposition lawmakers stressed that the executive branch of government "cannot abrogate or repeal a law."

"In the same vein, the Executive cannot unilaterally withdraw from a treaty or international agreement because such withdrawal is equivalent to a repeal of a law," they said, citing Article VII, Section 21 of the Constitution, which "requires" Congress' participation in the country's entering into international agreements.

The Senate ratified the Rome Statute, the treaty that established the ICC, in 2011.

The petitioners-lawmakers also said the withdrawal cannot be justified under the president's "residual powers," which they said may only be invoked in the absence of the involvement of a "clear constitutional principle."

"It would be an extravagant claim to say that the President has the residual power to act like Congress in the termination of laws," the pleading stated.

"To believe in such claim would fundamentally upend the constitutional allocation of powers and confer legislative powers upon the Executive — which is precisely what the Constitution is designed to prevent," it added.

Named as respondents in the petition are Foreign Affairs Secretary Alan Peter Cayetano, Executive Secretary Salvador Medialdea, permanent Philippine representative to the UN Teodoro Locsin Jr., and chief presidential legal counsel Salvador Panelo. — MDM, GMA News