Former Senate President Franklin Drilon on Tuesday, November 28 said President Ferdinand “Bongbong” Marcos Jr. has the legal authority to rejoin the International Criminal Court (ICC) without having to seek the Senate’s concurrence.

Drilon issued the statement in response to a notion raised that the Senate’s concurrence is a prerequisite for the Philippines to return to the ICC’s fold.

“In my view, the concurrence of the Senate is not necessary for the Philippines to rejoin the International Criminal Court (ICC),” Drilon said.

“The Philippines can rejoin the ICC without returning to the Senate. The President can rely on the original resolution or ratification, as it remains valid and in effect," the former senator said.

The former justice secretary said he firmly believes that rejoining the ICC is purely an executive action, given the Senate's prior ratification of the treaty.

Senate Resolution No. 57, which was passed on August 23, 2011, expressed the Senate's concurrence in the ratification of the Rome Statute. Drilon said this resolution “like any other resolution or law, remains legally binding unless specifically repealed. Its ratification has never been revoked.”

The former legislator also cited President Duterte’s unilateral withdrawal from the ICC in 2017 and the abrogation of the two-decade-old Visiting Forces Agreement (VFA) in February 2020.

Eventually, Duterte, after three suspensions, restored the US military pact, unilaterally reinstating it by retracting the termination letter for the VFA.

In Pangilinan vs. Cayetano, where Drilon was one of the petitioners, the Court said that unless there’s a provision requiring Senate concurrence prior to withdrawal, the President can withdraw from a treaty.

"The Senate’s concurrence in the ratification of the Rome Statute was never withdrawn. It, therefore, remains valid," he stressed.

“If withdrawal from a treaty can be made through an executive action as shown by former President Duterte, then the decision to rejoin can likewise be made through an executive action by President Marcos,” Drilon said.

Drilon cited previous executive actions, including the unilateral withdrawal from the ICC by former President Duterte in 2017.

He pointed to Duterte’s abrogation of the two-decade-old Visiting Forces Agreement (VFA) in February 2020, wherein after three suspensions, he recalled the suspension and effectively reinstated the VFA.

It may be recalled that in February 2020, the former president unilaterally terminated the VFA, only to later unilaterally reinstate it by retracting the termination letter for the VFA.

In Pangilinan v. Cayetano, where Drilon was one of the petitioners, the Court said that unless there’s a provision requiring Senate concurrence prior to withdrawal, the President can withdraw from a treaty, according to Drilon.

"The Senate’s concurrence in the ratification of the Rome Statute was never withdrawn. It, therefore, remains valid," Drilon stressed.

“If withdrawal from a treaty can be made through an executive action as shown by former President Duterte, then the decision to rejoin can likewise be made through an executive action by President Marcos,” he said.

He further said former President Duterte's ICC withdrawal practically sets a precedent for President Marcos.

“If Duterte could unilaterally withdraw from ICC, President Marcos should similarly have the authority to rejoin the ICC,” Drilon said.

“The situation would have been different if former President Duterte had sought the Senate's concurrence when the country left the ICC, as that action would have been legally binding and established a precedent,” he emphasized.