MANILA, Philippines – President Rodrigo Duterte’s decision to “immediately withdraw” from the International Criminal Court (ICC) should undergo scrutiny before it proceeds, the head of the Integrated Bar of the Philippines (IBP) said. 

In a text message to Rappler on Wednesday, March 14, IBP national president Abdiel Dan Fajardo pointed out that such a move must go through the Senate. (READ: Things to know about Duterte’s pet peeve ICC)

“An important national decision such as the country withdrawing from the Rome Statute should undergo the same scrutiny, diligent study, and debate that the country’s prior decision of entering into the Rome Statute went through,” he said.

Duterte on Wednesday declared that the withdrawal will take effect immediately, claiming that the agreement was fraudulent to begin with because the Philippines was “made to believe that the principle of complementarity shall be observed, that the principle of due process and the presumption of innocence” shall prevail.

The Rome Statute, the ICC’s founding document which the Philippines is a party to, however, explicitly states that there is a one-year period before withdrawal takes effect. The first step toward withdrawal is for the government to send a letter to the United Nations (UN) secretary-general. (WATCH: The International Criminal Court process)

Can the withdrawal be stopped even if the letter has already been received? Yes. Just last March 6, the UN announced that South Africa’s withdrawal had been revoked after a local court ruled in February that the country’s decision to withdraw without parliament’s approval was unconstitutional.

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Evading responsibility

Duterte’s decision comes after the ICC’s Office of the Prosecutor announced it is starting a preliminary examination “following a careful, independent, and impartial review of communications and reports documenting alleged crimes” committed since 2016 in the Philippines.

Calling the legal reasoning behind the withdrawal “novel at best and skewed at worst,” National Union of Peoples’ Lawyers (NUPL) president Edre Olalia said it jumps the gun on Duterte’s potential legal liability or responsibility.

“[Duterte] wants to be immune and act with impunity both under domestic law and under international law,” Olalia said. “They are patently self-serving and [this move] unilaterally rearranges the cosmos of international law and its principles.”

Former solicitor general Florin Hilbay, meanwhile, said Duterte has no authority to withdraw from the ICC “on his own.”

“The ICC was ratified by the Senate,” Hilbay said on Twitter. “Withdrawal, as a constitutional matter, requires a similar concurrence.”

Senate Resolution No. 289, filed in February 2017, seeks to declare that the Senate has a say in the termination of any treaty or international agreement. It has yet to be adopted.

“The power to bind the Philippines by a treaty and international agreement is vested jointly by the Constitution in the President and the Senate,” the resolution states, also citing the principle of checks and balances in government.

According to Article VII, Section 21 of the 1987 Constitution, “no treaty of international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

The Senate resolution further states that “a treaty or international agreement ratified by the President and concurred in by the Senate becomes part of the law of the land and may not be undone without the shared power that put it into effect.” – with reports from Lian Buan / Rappler.com