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Senate irrelevant to ICC withdrawal

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The Supreme Court (SC) is about to wind up its hearings on issue concerning the withdraw of the Philippines from the Rome Statute, the treaty that created the International Criminal Court.

Manila became a signatory to the Rome Statute during the incumbency of President Benigno Aquino III. The pro-Aquino Senate back then ratified the treaty.

Under Section 21, Article VII of the Constitution, the president has the exclusive power to enter into treaties and international agreements, provided that the Senate concurs by a vote of at least two-thirds of all its members. Therefore, at least 16 senators must approve the president’s decision to enter into a treaty, for the treaty to be binding on the country.

What happens when the president decides to withdraw from a treaty? Is the approval of the Senate needed for a valid withdrawal? The Constitution is silent on this matter.

On 14 March 2018, President Rodrigo Duterte announced that the Philippines will withdraw from the Rome Statute and directed the Department of Foreign Affairs to serve the pertinent note verbale to the Secretary-General of the United Nations. Under the provisions of the treaty, the withdrawal will take effect one year after the notice of withdrawal is served.

Six senators known for their anti-administration stance filed a petition in the SC questioning Manila’s withdrawal from the Rome Statute. They argue that if the approval of the Senate is necessary for the president to enter into a treaty, then the approval of the Senate is likewise needed for a valid withdraw from a treaty.

The contention of the six senators is legally groundless.

If the Constitution intended that Senate concurrence is needed for a valid withdrawal from a treaty, then the Constitution should have explicitly said so. Its voluminous text, which makes it among the longest constitutions in the world, says nothing in that regard.

Entering into a treaty carries with it onerous obligations which the Philippine government must honor. Those obligations necessarily create expenses which the Philippine government must pay for. Since public funds are involved, the Constitution saw it fit to require the concurrence of the Senate.

The concurrence of the Senate in treaties entered into by the president is not an act of legislation. Lawmaking requires the participation of both chambers of Congress – the Senate and the House of Representatives. There being no participation from the House in the ratification of the Rome Statute, then the role of the Senate under Section 21, Article VII of the Constitution is obviously not legislative in character. Being so, withdrawal from a treaty is not the same as the repeal of existing legislation, where congressional action is necessary.

Although a treaty has the force and effect of law in the Philippines, it is not a legislative enactment. It is, essentially, an act of the executive department, not of the legislative department. Withdrawal from a treaty is, therefore, different from a repeal of a legislative enactment made by Congress.

The constitutional provision on treaties is found under Article VII (executive department) and not under Article VI (legislative department). This is a clear indication that entering into a treaty is essentially an executive rather than a legislative concern.

At the initial hearing of the petition, one justice of the SC seemed to be of the view that under Section 17, Article VII of the Constitution, the president cannot withdraw from the Rome Statute. Section 17, Article VII states that the president “shall ensure that the laws be faithfully executed.” Thus, it is argued that because the president must ensure that the laws are faithfully executed, he must enforce the Rome Statute because the latter has the force and effect of law. In other words, the president cannot withdraw from the Rome Statute.

That view is specious.

When a country that is a signatory to a treaty wants out of the treaty, there is nothing in International Law which forbids that. If a state is free to enter into a treaty, that state ought to be free to withdraw from a treaty.

The Rome Statute has a provision allowing for the withdrawal of a signatory state. Being so, there is nothing illegal about withdrawing from the Rome Statute. In this sense, therefore, when President Duterte withdrew the Philippines from the Rome Statute, he did so in compliance with the provisions of the treaty.

Since provisions of the Constitution cannot be construed to lead to an absurdity, then the constitutional duty of the president to “ensure that the laws are faithfully executed,” presupposes that only those laws which remain in force shall be executed. Thus, when President Duterte withdrew the Philippines from the Rome Statute, a withdrawal which is allowed by the Rome Statute itself, then the Rome Statute ceases to be part of the laws of the Philippines.

Accordingly, President Duterte has no constitutional duty to ensure that the Rome Statute is executed, precisely because the Philippines has lawfully withdrawn from it.

Eight votes are needed to reject Manila’s withdrawal from the Rome Statute. Thus, even assuming that the concurrence of the Senate is required for withdrawal, the six senators who filed the petition do not constitute enough votes to stop the withdrawal. From all indications, that number will not increase because no other senator has expressed disapproval of the withdrawal from the treaty.

The petition is obviously a clumsy attempt to discredit President Duterte.

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