‘Phl Can’t Be Compelled To Cooperate In ICC Probe’

The administration cannot be compelled to cooperate in any probe by the International Criminal Court (ICC) on the alleged human rights abuses related to President Duterte’s war on drugs, presidential spokesman Harry Roque Jr. said on Thursday, July 22.

Malacañang reiterated its stand after the Supreme Court ruled that Duterte cannot invoke the Philippines’ withdrawal from the Rome Statute to skirt the investigation by the prosecutor of the ICC into allegations that the killings related to the war on drugs constituted crimes against humanity.

“Unfortunately, the lack of enforcement mechanism cannot compel the Philippines to cooperate when the President has clearly said we will not do so,” Roque said.

But the Supreme Court said the President cannot arbitrarily terminate international agreements without concurrence of the Senate.  But it proceeded to dismiss the petitions questioning Duterte’ decision to withdraw from the treaty since they had become moot after the “Philippines completed the requisite acts of withdrawal.”

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

The high tribunal ruled that as a state party the Philippines was bound to recognize the jurisdiction of the ICC and cooperate with its processes even after withdrawal from the treaty that created the international court.

“Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member,” the court said in a 101-page decision penned by Associate Justice Marvic Leonen.

“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,” it said in its March 16 resolution, exactly three years after the government filed its notice of withdrawal from the treaty. The copy of the decision was released to the media only on Wednesday, July 21.

As far as Roque is concerned, the SC decision should not be seen as something related to the ICC probe but on the issue of whether the Philippines’ withdrawal from the treaty needed the Senate’s concurrence.

“That’s obiter dictum. You know in law… there’s the main issue that has to be resolved – and the main issue was: is Senate concurrence required sa pagbitiw sa ICC because in becoming a member of the ICC, the Senate concurred – and the main decision was no,” he said.

Roque explained that an obiter dicta does not really have jurisprudential value. “It is on the side. It is not on the merits; it is not the main ruling of the court, and we are not of course in any way concerned about that obiter. That’s the nature of obiters,” he said.

Roque also debunked an interpretation of University of the Philippines professor Romel Bagares that the obiter should be considered as “part of the key holdings of the court.”

“Well, I will not say he is mistaken, we simply do not agree because the issue was and if I remember this correctly because I appeared also in the Senate preparatory to their filing of this petition, the issue was: should the Senate have concurred before the President withdrew from the ICC – and the ruling of the court was it’s moot,” he said.

Roque said the SC should have not voted that the matter was moot and academic if it also believes that the move violated the Constitution.

“By ruling that it is moot, the court virtually said hindi kinakailangan ang (there’s no need for) concurrence of the Senate,” he said.

Leonen said the judiciary would continue to function and human rights would continue to be protected even after the Philippines’ withdrawal from Rome Statute.

“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,” Leonen said in a tweet, quoting from the decision. Leonen wrote the 106-page decision.

Read more: ICC Prosecutor Seeks Authority To Probe Phl War On Drugs, Cites Reasonable Basis For Possible Crimes Against Humanity

In the decision, the SC said the president, as primary architect of the country’s foreign policy and as head of state, is allowed by the Constitution to make preliminary determinations on what, at any given moment, might urgently be required in order that the foreign policy may manifest the country’s interest.

When the Philippines announced its withdrawal from the ICC, it took actions that enabled it to complete the requisite acts of the withdrawal and comply with the requirements of the Rome Statute. The ICC, in turn, acknowledged the Philippines’ withdrawal.

“This foreclosed the existence of a state of affairs correctible by this Court’s finite jurisdiction. The Petitions were, therefore, moot when they were filed. The ICC’s subsequent consummate acceptance of the withdrawal all but confirmed the futility of this Court’s insisting on a reversal of completed actions,” the SC said.

It also said that the Senate never sought to enforce what would have been its prerogative to require its concurrence for withdrawal.

“To date, Resolution No. 249, which seeks to express the chamber’s position on the need for concurrence, has yet to be tabled and voted on. Individual senators have standing to question the constitutionality of the actions of their chamber. Yet, in this case, as shown by the Resolution which petitioners co-authored, they acknowledged that an action by the Senate was necessary before coming to this Court. Thus, no actual conflict or constitutional impasse has yet arisen even as implied by their actions,” it said.

Meanwhile, Sen. Risa Hontiveros said she respects the SC and welcomes its acknowledgement of the President’s power to withdraw from treaties is not without limitation.

“I respect the decision of the Supreme Court in relation to the petition we in the Senate minority filed challenging the Duterte administration’s unilateral withdrawal from the Rome Statute,” Hontiveros said.

“I am glad that despite the dismissal of the petition, the SC nonetheless acknowledged that the President’s power of withdrawal from treaties is not without limitation and that the President may not unilaterally withdraw from treaties on which the Senate imposed conditions for its concurrence,” she added. “This means that the withdrawal will not negate any liability for the alleged summary killings and other abuses committed in the course of the so-called war on drugs.”

“I have some bad news for human rights violators in the country: they are not off the hook. They have nothing to celebrate. Sooner or later, they will have to face justice for the heinous acts they have committed against the Filipino people,” she stressed.

For detained Sen. Leila de Lima, the SC decision was a reminder of how Duterte abused the Office of the President by bending foreign policy, albeit unsuccessfully, solely for his personal benefit.

“What else is the reason for Duterte’s departure from the Rome Statute/ICC but to avoid imminent cases against him and his policy of mass murder under his war on drugs?” De Lima said.

“The decision likewise implied that the Rome Statute was in full effect prior to our withdrawal. This means that Duterte’s two-bit theory that the Rome Statute was ineffectual due to lack of publication does not hold water,” she added. – With Cecille Suerte Felipe, Evelyn Macairan