A shameless exhibition of subservience

It is most shameful to note that six of our senators from the Liberal Party, a party that has become the unofficial spokesman of foreign interest groups, have filed a motion for reconsideration seeking to invalidate the decision of the government to withdraw from the Statute of Rome otherwise known as the International Criminal Court. The traitorous senators are Kiko Pangilinan, Franklin Drilon, Bam Aquino, Antonio Trillanes IV, Risa Hontiveros and Leila de Lima. De Lima is, of course, detained at the PNP Custodial Center accused of benefitting from the sale of illegal drugs during her term as secretary of justice.

Any citizen who dearly values his being a Filipino is astounded at their action to shamelessly beg before a colonialist-created Kangaroo Court not to accept the government’s decision to withdraw, having in mind of bringing President Duterte before the ICC for alleged extrajudicial killing of suspects involved in the sale and distribution of illegal drugs and for alleged human rights violation. These misplaced Filipinos argue that Article 127 of the Statute of Rome provides that the withdrawal shall take effect only after one year, and the proceedings which started before the effectivity will not be affected, referring to the preliminary investigation conducted by ICC special prosecutor, Fatou Bensouda.

To begin with, the ICC has never been considered an international organization because it overlaps the functions of the UN Security Council, notwithstanding that it has no enforcement arm. Yes, it was President Estrada who certified our application for membership in 2000, and was ratified by Senate Resolution No. 546 in 2011.

To withdraw, they say, from that Kangaroo Court organized by former European colonial powers that hold the unparalleled and unsurpassed distinction of enslaving an entire continent and for committing pillage and plunder in countries they now want to be placed under ICC jurisdiction, the senators insist that the withdrawal is invalid, and ergo the President can be charged criminally.

The trouble, however, is that they refuse to admit that Resolution No. 546 and now cited by them as basis to effectively ensnare the country is not a law. Many right-minded lawyers argue that the country can legally withdraw from it anytime much that the resolution is not a law or a treaty that the contracting parties would be affected by such unilateral decision to withdraw. The Senate resolution was a mere adhesion contract, the reason why many countries arbitrarily and unilaterally withdraw—as when the US withdrew from UNESCO. Besides, it is not provided in the Constitution that the Senate must first revoke the resolution before we can effectively withdraw from the ICC.

Unlike a treaty or international agreement where contracting parties simultaneously agree to abide to the accord, our membership with the ICC is by virtue of our adhesion to a contract, which means that the country simply adhered to what original contracting parties agreed on what is often called a convention treaty or accord. As an adhesion contract, the Philippines cannot be punished by any form of punitive action for withdrawing from that organization unless it committed acts specifically punishable while being a member.

Has our membership become effective and binding considering that the Senate Resolution was not published in the Official Gazette? These rascals should not cite Article 126 of the Statute of Rome as their point of reference because its applicability implies that we have already become a member.

The so-called “principle of complementarity” states that ICC comes in only to investigate and prosecute core international crimes when national jurisdictions are unable or unwilling to do so genuinely. That means, only if our local courts cannot carry out its function of enforcing our own penal laws. But again that presupposes that the accused was brought to trial before ICC special prosecutor Fatou Bensouda to proceed with the case.

Our moronic senators should understand that although the ICC can prosecute any individual for crimes of genocide, crimes against humanity, and war crimes of which the state has not ratified the Statute, a UN Security Council Resolution is necessary. In its absence, it is highly doubtful whether the ICC prosecutors can proceed to act on their own initiative. This reiterates the universal principle of the sovereign right of an independent state. This is mandatory because the UN Security Council is the only enforcing agency of the world body.

But how can that be made possible when three of the permanent members, the United States, China and Russia, refused to become members of the ICC? France, United Kingdom, Germany and many European countries that were once the greatest colonizers of Africa and Latin America certainly have their motive in creating a body bent on overtaking the functions of the International Court of Justice.

So far, four countries have already withdrawn from the ICC. Many leaders have been indicted by the ICC for alleged war crimes and genocide, but this has raised questions and suspicion that this pattern has a color of racial discrimination. To many of them, they see it as even worse because the architects behind the indictment and prosecution of their leaders before the ICC are their former colonizers, which technically mean they have more power now than during their heydays of imperialist colonization.

In this case, the ICC’s main goal is to help put an end to impunity for the perpetrators of serious crimes. These accordingly include crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. While the enumerated crimes could make the President liable, they are presumptuous. For instance, the use of the word “impunity” is to denote the guilt of the law enforcing authorities. Maybe some are killed for resisting arrest or for fighting back, but the circumstances cannot automatically be elevated to one that falls within the jurisdiction of the ICC, much more be categorized as one committed with impunity.

Moreover, while the 1987 Constitution did not directly grant to the President immunity from suit, that privilege remains even to his immediate predecessor but applying a different principle called the “Stare Decisis Doctrine,” a principle of international law which precludes the courts from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory. The drug war launched by President Duterte is an official policy of the state. It is not a policy designed to commit genocide or to exterminate our own citizens but to deter those engaged in the distribution and sale of illegal drugs. It is the act of the criminal to defy the law that is said to commit impunity, and not to those law enforcing authorities who put their lives on line to prevent the spread of drug addiction and invariably curtail criminality.

The President, being vested with executive power to formulate and enforce the policy of the government, can implement such policy similar to the power to approve and veto budget, impose tariff, grant pardon and amnesty, etc., without waiting for Congress to concur with him on such matters. Otherwise, that would unduly curb his power to make him completely powerless from performing his duty.

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Topics: Rod Kapunan , Liberal Party senators , International Criminal Court , Statute of Rome
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