SC ruling rebukes Duterte for disdaining the ICC

The over-a-hundred-page ruling had been adopted unanimously by the 15 members of the Supreme Court on March 16, but was released to the media only last Wednesday (July 21). It rebuked President Duterte for his disdainful stance towards the International Criminal Court and his arbitrary withdrawal of the country’s membership from the global court.

The high tribunal ruled that:

• President Duterte cannot evade investigation by the ICC prosecutor on the charge that he committed the “crime against humanity of murder” in his “war on drugs” by invoking the country’s withdrawal from the court, which he ordered in March 2018, taking effect a year later.

“Withdrawing from the Rome Statute [which established the ICC on July 1, 2002] does not discharge a state party from the obligations as a member,” the ruling says.

“Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated…” the SC declared.

This means that all acts committed by President Duterte and other public officials up to March 17, 2019 with regard to the drug war were within the ICC jurisdiction, as clearly stated in the Rome Statute’s Article 127(2). Even after the withdrawal, the SC ruling says, “whatever process was already initiated before the [ICC] obliges the state party to cooperate.”

• As to Duterte’s arbitrary termination of the country’s participation in the Rome Statute, the high court declared that he doesn’t have sole authority to do so, as “the treaty negotiations were premised not only upon [the President’s] own diplomatic powers, but on the specific investiture made by Congress,” namely, concurrence by the Senate.

“In sum, at no point and under no circumstances does the President enjoy unbridled authority to withdraw from treaties or international agreements,” the ruling declares.

The SC issued the lengthy decision in connection with three petitions filed before it questioning the legality of President Duterte’s withdrawal of ICC membership, which he did after then ICC prosecutor Fatou Bensouda had begun preliminary examination of the drug-war killings, based on a complaint her office had received.

Last month Bensouda, before ending her term as prosecutor, submitted her 57-page report to the ICC Pre-Trial Chamber, and asked for authority for her office to start an investigation on the drug-war killings. She had found “reasonable basis to believe” that the crime against humanity of murder “was part of a widespread and systematic attack directed against a civilian population pursuant to or in furtherance of state policy.”

The high court, however, dismissed the three petitions for being moot, because the withdrawal had already been accepted by the ICC and acknowledged by the United Nations and that it had no authority to invalidate such actions.

Interestingly, the SC ruling was made public after Duterte had told a “national assembly”of his PDP-Laban party last week that he would run for vice president in the 2022 elections to gain immunity from suit. Presumably, he had the ICC investigation primarily in mind (as he had repeatedly railed against it in the past three years). He said, “Sabi ng batas na kung presidente ka, bise presidente ka, may immunity ka. Eh di takbo nalang akong bise presidente.”

Had the Supreme Court made public its March 17 ruling much earlier, could it have caused Duterte to desist from pushing his vice presidential candidacy, on his erroneous legal understanding that, under the Constitution, the vice president enjoys the same immunity from suit as the president?

Hardly, I think, given his spokesperson’s dismissive remark that the SC ruling was just an “obiter dictum”(an incidental opinion) and cannot be considered jurisprudence. “It is not the main ruling of the court, and we [Malacañang] are not…in any way concerned about that obiter,” Harry Roque said at a press briefing.

“As he has clearly said,” Roque crowed, President Duterte would not cooperate with the ICC investigation. And he could not be compelled to cooperate, he added, because the ICC lacks an enforcement mechanism.

No clearer sign of arrogance and hubris – and an utter lack of comity as a head of state vis-à-vis the international community of nations.

On the other hand, the Supreme Court ruling clearly demonstrates its respect for the ICC’s separate and distinct judicial process. Yet the Duterte presidency’s stance toward the SC’s show of probity and humility is to belittle its ruling as bereft of jurisprudence.

The National Union of People’s Lawyers, which has been assisting the complainants before the ICC, commended the SC ruling, while saying the “obiter dictum” issue is debatable.

Both politically and morally, the SC ruling is “weighty, because it’s a full-court, unanimous decision,” pointed out Edre U. Olalia, NUPL president. It sends a “very clear and loud message” from the nation’s highest court that, as a state party to the ICC – despite its withdrawal – the Philippines was obliged to cooperate with the ICC probe.

NUPL chair Neri Colmenares also hailed the SC ruling, particularly its citation of the Rome Statute’s Article 127 as the governing provision on the ICC’s continuing exercise of jurisdiction – and the Philippines’ obligation to cooperate in its investigation even after withdrawing from membership in the court.

As regards Malacañang’s stance, Justice Marvic Leonen, who wrote the lengthy decision, tweeted a quote from the decision:

“Despite the withdrawal, this Court finds no lesser protection of human rights within our system of laws. Neither do we agree… that without the treaty, the judiciary will not be able to fulfill its mandate to protect human rights.” It does seem to send a reassuring message to those who are deeply troubled by the continuing impunity of human rights violations in our country.

How will the Supreme Court rule on the 37 petitions questioning the constitutionality of the Anti-Terrorism Act of 2020? Chief Justice Alexander G. Gesmundo hopes the decision will come out before this year ends.

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Published in The Philippine Star
July 24, 2021

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