SC backs pullout from ICC

The President of the Philippines can unilaterally withdraw from international agreements that he or she determines to be contrary to the 1987 Constitution or laws, according to the Supreme Court.

However, the Philippines has the obligation to cooperate with the International Criminal Court despite its withdrawal from the Rome Statute, the high court also said Wednesday.

The country’s top judges ruled the ICC can prosecute “government actors” for alleged crimes committed before the country withdrew from the tribunal—contradicting President Rodrigo Duterte’s assertion it has no jurisdiction.

The Supreme Court dismissed the petitions challenging Duterte’s decision to withdraw the country’s membership in the ICC, which is poised to order a full-blown investigation into his deadly war on drugs.

In a unanimous decision penned by Associate Justice Marvic Leonen, the SC “dismissed the petitions questioning the unilateral withdrawal for being moot and academic.”

“This will keep Duterte awake from now on,” said former senator and vocal critic Antonio Trillanes, who was one of the petitioners.

Presidential spokesman Harry Roque did not immediately respond to a request for comment.

“This is good,” said Edre Olalia, president of the National Union of People’s Lawyers, which is representing some of the relatives of drug war victims in the case filed with the ICC.

Olalia said he was confident there was enough evidence to prosecute Duterte, but it would take time.

“We are ready for the long haul,” he told Agence France-Presse.

The Rome Statute is the treaty that established the ICC, the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.

“The abrogation of treaties that are inconsistent with the Constitution and statutes is in keeping with the president’s duty to uphold the Constitution and our laws,” the Supreme Court ruled on March 16, with its full decision released to the media just yesterday.

“Thus, even sans a judicial determination that a treaty is unconstitutional, the president also enjoys much leeway in withdrawing from an agreement which, in his or her judgment, runs afoul of prior existing law or the Constitution,” the court added.

If the courts determine the unconstitutionality of a treaty, the President, as primary architect of foreign policy, may unilaterally withdraw from it, the SC said in its decision.

“Owing to the preeminence of statutes enacted by elected representatives and hurdling the rigorous legislative process, the subsequent enactment of a law that is inconsistent with a treaty likewise allows the president to withdraw from that treaty,” it added.

However, the SC also cited the Rome Statute’s provision that the exit does not affect criminal proceedings pertaining to acts that occurred when a country was still a state party.

The court dismissed the petitions filed by a group of opposition senators and the Philippine Coalition for the ICC on the ground of mootness, as the country formally exited the Rome Statute on March 17, 2019.

“Here, the withdrawal has been communicated and accepted, and there are no means to retract it,” the decision read. “Having been consummated, these actions bind the Philippines.”

Duterte has repeatedly said the Rome Statute is not enforceable in the Philippines as it was not published in the Official Gazette or a newspaper of general circulation, citing jurisprudence. Some local lawyers, however, have argued that publication is not a requirement.

“We fail to see how this Court can revoke—as what [the] petitioners are in effect asking us to do—the country’s withdrawal from the Rome Statute, without writing new terms into the Rome Statute,” it said.

“The President’s withdrawal from the Rome Statute was in accordance with the mechanism provided in the treaty.”

However, the SC said the President could not unilaterally withdraw from agreements that were entered into “pursuant to congressional imprimatur,” or where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.

The magistrates also addressed the petitioners’ claim that the ICC exit violated their right to be provided ample remedies for the protection of their life and liberty.

“This fear of imagined diminution of legal remedies must be assuaged. The Constitution, which embodies our fundamental rights, was in no way abrogated by the withdrawal. A litany of statutes that protect our rights remain in place and enforceable,” the SC said.

“Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here. The Philippines remained covered and bound by the Rome Statute until March 17, 2019,” the SC said.

In her request for a formal inquiry, former ICC prosecutor Fatou Bensouda said the Court retains jurisdiction over alleged crimes against humanity that have occurred on Philippine territory during the period when it was a state party from November 1, 2011 to March 16, 2019.

The prosecutor’s request is currently pending before the Pre-Trial Chamber, which is composed of three ICC judges.

Malacañang has repeatedly said President Rodrigo Duterte and the government will not cooperate in any ICC investigation, claiming lack of jurisdiction. The Palace also said the request for an investigation was “legally erroneous and politically motivated.”

“The decision noted that in this case, there were provisions in a prior law, Republic Act No. 9851, which were amended by the Rome Statute,” the SC added.

RA 9851 refers to domestic law otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity”, which penalizes crimes against international humanitarian law, genocide, and other crimes against humanity. It was enacted into law in December 2009.

In a diplomatic note to the United Nations Secretary General, the Philippines said that “the decision to withdraw is the Philippines’ principled stand against those who politicize and weaponize human rights, even as its independent and well-functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect the people.”

This prompted Senators Leila de Lima, Francis Pangilinan, Franklin Drilon, Paolo Benigno Aquino, Risa Hontiveros, and Antonio Trillanes IV to file a petition questioning the constitutionality of the President’s action to withdraw from ICC.

The six senators said the President’s withdrawal from the ICC is invalid as it has no concurrence from at least two-thirds of the 24-member Senate.

They asked the SC to compel the Department of Foreign Affairs and the Philippine Permanent Mission to the United Nations to notify the United Nations Secretary-General of the revocation of the notice of withdrawal from the ICC it received on March 17, 2018.

They argued that the Rome Statute ICC was validly entered into by the Philippine government and has the same status as a law enacted by Congress and, thus, the withdrawal must be approved by Congress.

Apart from the petition filed by the six senators, the Philippine Coalition for the International Criminal Court (PCICC) led by former Commission on Human Rights chair Loretta Rosales also filed a similar petition.

They argued that the President “gravely abused his discretion in an act tantamount to an absence or a lack of jurisdiction, when he unilaterally decided to withdraw the membership of the Philippines from the International Criminal Court.”

Duterte’s act, they said, “violated the Constitutional system of checks and balances in treaty making under Art. VII, Sec. 21 of the 1987 Charter, which prescribes a shared duty towards that end between the Executive and the Legislative branches of government.”

The group stressed that the withdrawal from the ICC should be nullified as it was “based on capricious, whimsical, ridiculous, misleading, or misled, incoherent and/or patently false grounds, with no basis in fact, law or jurisprudence.”