The 1987 Constitution did not explicitly state that the concurrence of the Senate is required for the country to withdraw from a treaty, so is it only implied.
The justices of the Supreme Court debated on this at the resumption of the oral arguments tackling the Philippines’ withdrawal from the Rome Statute of the International Criminal Court (ICC).
“Neither the constitution and the law contains provision on treaty withdrawal,” Associate Justice Estela Perlas-Bernabe said during the hearing.
“Senate concurrence can be speculated upon by this Honorable Court,” Associate Justice Marvic Leonen said, adding that it is better if the actual members of the body, referring to the Senate, articulate the reasons why there is a need for Senate concurrence.
Former party-list Representative Ibarra Gutierrez, counsel for the minority senators, maintained that the ratification of a treaty requires Senate concurrence; therefore, withdrawal requires the same process.
However, Associate Justice Noel Tijam expressed apprehension that if they rule in favor of the Senate, it might be interpreted as an intrusion to its powers.
“Had the Senate asserted its authority to demand concurrence in the withdrawal from the Rome Statute?” Tijam asked. Gutierez said no.
Senate Minority Leader Francis “Kiko” Pangilinan said the Senate has started crafting a policy that will include a clause in 17 treaties that there has to be a Senate concurrence before it is withdrawn.
However, he admitted that there is no such clause in the Rome Statute of the ICC treaty.
“No clause is present in Senate resolution 546 (Rome Statute of the ICC treaty),” Pangilinan told the SC justices.
“How can we assert a right which has not been asserted by the body [Senate]?” Leonen asked.
Aside from Pangilinan, Senators Franklin Drilon, Leila de Lima, Bam Aquino, Antonio Trillanes IV, and Risa Hontiveros also filed petitions to revoke President Rodrigo Duterte’s order to withdraw from the ICC.
Leonen then called the petitioners’ lawyer and former Akbayan party-list Rep. Barry Gutierrez to the podium to explain the legal standing of the Senators.
“Their principle of basis for standing is in their capacity as senators of the Republic,” the lawyer said.
In his comment, Solicitor General Jose Calida said the opposition senators have no legal standing to file the case at SC simply because of the lack of official stance of the Senate as a collegial body, which divided the senators on the issue.
Calida agreed that the Senate resolution which sought to invoke Senate’s concurrence to the withdrawal was not passed and has actually been shelved.
The oral arguments will continue on Sept. 18 at 2 p.m. The solicitor general is due to present his position.
President Duterte announced the government’s withdrawal of its ratification of the Rome Statute, a United Nations (UN) treaty creating the ICC, last March.
READ: Duterte does the inevitable, declares PH withdrawal from ICC
In its diplomatic note to the United Nations secretary general, the government explained that the “decision to withdraw is the Philippines’ principled stand against those who politicize and weaponize human rights, even as its independent and well-functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect the people.”
The chief executive cited “baseless, unprecedented and outrageous attacks” against him and his administration as the reason for his withdrawal as a state party. /ee