Brexit and ICC exit

Jude Josue Sabio .

IN late April 2017, I personally went to and submitted with the Office of the Prosecutor, International Criminal Court that first communication charging President Duterte with crime against humanity through mass murder under the Rome Statute. To a certain extent, it is just like a situation in the domestic front where a lawyer like me files a criminal complaint with the Office of the Prosecutor, Department of Justice  on behalf of an aggrieved party.

What I did was mocked. A former cop, Ping Lacson, said it would just be thrown out like trash into a dustbin. A lawyer himself, Pantaleon Alvarez, bragged that it was fit for the “mental hospital.” But they were stunned when just nine months later, or in early February 2018, ICC Prosecutor Bensouda publicly announced the opening of a preliminary examination into the situation of the Philippines.

Indeed, it was an unexpectedly high moment, given that it was one of just a few of more than 10,000 communications for which a preliminary examination was opened. While I was vindicated, President Duterte panicked. At one time, he boasted that as a former prosecutor himself, he would face ICC Prosecutor Bensouda and ask her questions. Bravely, President Duterte announced his willingness to die even by firing squad. But later he changed his mind, saying that he would withdraw the Philippines from the ICC. 

In just over a month or in the middle of March 2018, President Duterte wasted no time in commanding his docile UN Permanent Representative Teddy Boy Locsin to formally submit, as he did submit, a written notification with the Office of the UN Secretary General in New York. This action reversed the 11 long arduous years of campaign for Philippine membership in the ICC spearheaded by the Philippine Coalition for the ICC.

The withdrawal was done unilaterally by President Duterte or without going through a debate or vote in the Senate.   It has been trumpeted by his legal advisers that as President, Mr. Duterte is the “chief architect” of foreign policy who does not need the consent or approval of the Senate for the withdrawal.

Sadly, the withdrawal became effective sometime in the middle of March this year, or one year after the date of the submission of the notification.   But since my communication had already been pending preliminary examination more than a month prior even to the submission of the notification of withdrawal, the ICC still retains and can continue to exercise its jurisdiction just like in the situation of Burundi, as already publicly announced by ICC Prosecutor Bensouda.

The validity of President Duterte’s unilateral withdrawal is still a nagging legal question now pending in the Supreme Court. In the United Kingdom or popularly known as Great Britain, a similar legal question arose in a somewhat different context. Although the legal question in the United Kingdom does not pertain to a withdrawal from the Rome Statute which is a treaty, the question pertains to a withdrawal from the European Union which derives its existence from a treaty just like the ICC.   

That legal question was settled by the British Supreme Court. In an 8-4 decision in a case where the Supreme Court first ever acted en banc, it was ruled that a notification of withdrawal from the European Union, or popularly known as Brexit, triggered under Art. 50 of the treaty of European Union, cannot be done legally by the British government without a debate in and approval of Parliament.

Such legal controversy originated in the British High Court which earlier upheld the right and power of Parliament to give its assent to such a notification of withdrawal. On appeal by the British government, the decision of the Supreme Court merely affirmed the earlier decision of the High court. Both court decisions were made even if the British public had earlier approved the Brexit in a referendum held for such purpose.

In the decision, the British Supreme Court favored “parliamentary sovereignty” over the prerogative of the Crown. The Court opined that the Crown’s prerogative in the conduct of foreign policy cannot prevail over the power of Parliament to give its assent to such a notification of withdrawal. The Crown’s prerogatives cannot legally deprive the British people of those rights arising from the treaty that Parliament had earlier assented to. To take away those rights would legally require an act of approval by Parliament. 

The result of this Brexit legal controversy is that immediately after the decision of the British Supreme Court, the British government sent a bill to Parliament for it to approve or assent to the notification of withdrawal of the United Kingdom from the European Union. In our case, if and when the Supreme Court rules to uphold the power of the Senate to give its approval to the notification of withdrawal, on the similar principle of “checks and balance” between the executive and the Senate on the matter of treaties, a similar action must be made in the Senate to secure its required assent to such withdrawal notice.