Carpio: Senate should assert power in treaty withdrawal following decision on ICC case

Retired Supreme Court (SC) Justice Antonio Carpio on Wednesday urged the Senate to assert that the power to abrogate a treaty must be exercised jointly with the President of the Philippines.

Carpio made the statement after the SC dismissed early this year the petitions challenging President Rodrigo Duterte’s decision to end the country’s membership in the International Criminal Court (ICC), which is studying whether to conduct a full-blown investigation into his deadly war on drugs.

“This is a battle for turf. If the Senate does not assert its prerogative to concur, it will lose its prerogative to concur. There is a constant battle among the branches of government. The moment you concede your prerogative to another branch, that could bind you in the future,” Carpio said in an online forum organized by the University of the Philippines College of Law.

“I think what the Senate should do is to say that the President can never unilaterally withdraw from a treaty without the consent of the Senate, and they should be very categorical about that. The moment you show any doubt about your prerogative, you will lose it and this is exactly what happened here.”

In this case, the SC noted that the Senate refrained from passing a resolution indicating that its concurrence should have been obtained in withdrawing from the Rome Statute— the treaty which created the ICC.

“Such reticence on this matter means that, as a collegial body, and in its wisdom, the Senate has chosen not to assert any right or prerogative which it may feel pertains to it, if any, to limit, balance, or otherwise inhibit the President’s act,” the Court’s March 16 ruling stated.

However, the SC said the president could not unilaterally withdraw from agreements, which were entered into pursuant to congressional imprimatur, or where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.

The SC junked the legal action taken by a group of opposition senators and the Philippine Coalition for the ICC on the ground of mootness, saying Duterte had already completed the withdrawal even before the petitions were filed between May and June 2018.

The Court cited the President’s announcement on the withdrawal on March 15, 2018 and submission of the notice of withdrawal to the United Nations the following day. The Philippines formally exited the Rome Statute on March 17, 2019.

Weighing in on this matter, former ICC Judge Raul Pangalangan said: “I’m struck by what the Court said: the petitions were moot at the time they were filed.”

“For me the most troubling part of that statement is that, you see, the Constitution says that the Supreme Court has the power to review the constitutionality of treaties and international agreements,” he said during the forum.

“If at the moment the President withdraws from a treaty, the case is already moot and academic, the Court will never have any occasion to exercise its constitutional power and it renders nugatory an entire safeguard: the separation of powers is basically erased by this reading of the mootness doctrine.” — RSJ, GMA News