Highlights from the oral arguments on ICC withdrawal
MANILA, Philippines — In March 2018, the Philippines under President Rodrigo Duterte became the fourth country to have announced withdrawal of its ratification of the Rome Statute, the treaty that established the International Criminal Court.
The chief executive cited “outrageous” attacks on him and his administration and the supposedly illegal attempt by ICC prosecutor Fatou Bensouda to place him under the Hague-based court’s jurisdiction as reasons for the country’s withdrawal.
This came a month after the ICC initiated a preliminary examination into allegations of extrajudicial killings in the Philippines.
Petitioners composed of Philippine Coalition for the ICC and opposition senators argued that the executive department committed grave abuse of discretion in withdrawing the country’s membership in the ICC without the concurrence of the Senate.
The oral arguments on the consolidated petitions challenging the country’s exit from the international tribunal began on August 28. It will resume on September 4.
Lawyers Romel Bagares, Ray Paolo Santiago and Gilbert Andres represented the PCICC, the group that campaigned for the treaty’s ratification for more than a decade.
The minority senators who were supposed to appear at the oral arguments—Francis Pangilinan, Franklin Drilon and Bam Aquino—were no-show.
Lawyer Anne Marie Corominas explained that the senators wanted more time to decide how they would proceed with the case after the Supreme Court rejected their plea to be represented by detained Sen. Leila de Lima at the oral arguments.
Here is a rundown of some of the points discussed in the oral arguments on the administration’s withdrawal of its membership in ICC:
Legal standing
Associate Justice Marvic Leonen questioned PCICC’s locus standi or legal standing in challenging the legality of the executive department’s move to pull out from the ICC.
“The reason why in constitutional cases, it must be the party that is actually injured so that the party can choose what kind of claims and defenses that they can raise,” Leonen said.
He asked Santiago if he has experienced actual injury as a consequence of the country’s withdrawal from the ICC.
“Your petition enumerates advocates for human rights whom I deeply respect… Principally, it must be shown that there is a personal, substantial, direct injury. What is your injury?” Leonen asked.
The justice also asked: Is this case premature? Has there been a violation of genocide? Crimes against humanity that you have experienced?”
Santiago admitted that “there is no direct injury on my part.”
He, however, maintained that PCICC’s case was not premature despite the absence of actual damage on his part.
Right to effective remedy
Associate Justice Francis Jardeleza asked Santiago to specify which right was violated when the government withdrew the Philippines’ membership from the ICC.
Santiago replied that Filipinos’ right to effective remedies will be scrapped.
Andres, in his opening statement, earlier pointed out that the country’s withdrawal “will abolish the Filipino people’s parallel means of enforcing right to effective remedies against international crimes committed by state forces and/or armed groups.”
Jardeleza, however, said that such right is not explicitly mentioned in the current charter.
The best textual support to this is the provision that states that “no person shall be deprived of life, liberty and property without due process of law.”
The justice told the petitioners to cover in their memorandum why the court should agree that there is a right to effective remedy as an extension of a person’s right to life or liberty.
Leonen also told the counsels that the courts in the country are functioning.
Senate approval
The petitioners maintained that the Duterte administration’s unilateral withdrawal was invalid due to the absence of concurrence from the Senate.
“The executive cannot unilaterally withdraw from a treaty without violating the constitution. Such withdrawal, therefore, is a violation of separation of powers,” Bagares said.
Article VII, Section 21 of the 1987 Constitution states that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.
The charter, however, is silent of the upper chamber’s part in the withdrawal.
“We’re all very clear now that the language of the Constitution particularly Article VII, Section 21 relates only to ratification. It does not mention at all the termination or withdrawal of the state party to the treaty it accedes to,” Associate Justice Lucas Bersamin said.
The counsels argued that since the Rome Statute is a treaty that has the same status as a law enacted by Congress, withdrawal from it needs the approval of at least two-thirds of the Senate.
“If the Senate concurs by two-thirds of votes of all its members so it’s valid and effective under our constitutional mechanism. Hence, the reverse is also true. If the president withdraws from a treaty such as the Rome Statute then it also needs the concurrence of the Senate,” Andres said.
In 2011, the upper house approved the ratification of the Rome Statute.
During his interpellation, Leonen pointed out that Resolution 289—which expresses the sense that the upper chamber should have a say when a treaty concurred in by the Senate is terminated—has not been approved.
Sen. Manny Pacquiao, an ally of the president, knocked down the measure.
“Might not it be better for this court to wait until the Senate does its own reading of the constitution? The court may not want to become the judicial dictator of this country over extending its powers to realms, which might be political in nature rather than legal.”
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