SC Starts Oral Arguments on PH Withdrawal from ICC

The Supreme Court on (SC) Tuesday started the oral arguments on the petition, which seeks to invalidate the Philippine government’s withdrawal from the International Criminal Court (ICC).

Tuesday’s hearing was presided by new Chief Justice Teresita Leonardo-De Castro, who took her oath of office before the SC en banc, with the 13 other justices present, prior to the start of the regular en banc session.

The oral arguments tackled the petition of the six senators namely, Kiko Pangilinan, Franklin Drilon, Bam Aquino, Antonio Trillanes IV, Leila de Lima and Risa Hontiveros and the petition filed by the Philippine Coalition for the International Criminal Court (PCICC), former Commission on Human Rights chairperson Loretta Ann Rosales, and several others. who filed for certiorari and mandamus, saying that under Article VII, Section 21 of the 1987 Constitution, the Philippine government’s signing of a treaty or international agreement requires the participation of the Senate by voting on it.

Lawyers Romel Bagares, Gilbert Andres and Paolo Santiago represented the second group of petitioners. They said “the Rome statute is a treaty” and “the unilateral withdrawal [from the ICC] is interference, a violation of the separation of powers.”

During the interpellation, Associate Justice Marvic Leonen asked the counsel of the petitioners if their case is aimed at embarrassing the President.

He said the withdrawal would not stop the ICC prosecutor’s preliminary examination of the extrajudicial killings and human rights violations committed under the government’s war on drugs.

Leonen asked Santiago if they want the court to issue a writ of mandamus against President Rodrigo Duterte of the executive branch of the government.

Santiago said yes, saying that the withdrawal to the Rome Statute is unconstitutional and there should be a concurrence of two-thirds of the Senate since it is a treaty.

He said victims of human rights are deprived of protection of the law due to the sudden withdrawal of the President from the ICC.

The petitioner said the country cannot just withdraw without violating the law since only the Senate can void its own acts since the Rome Statute is a treaty.

They said the unilateral withdrawal is a violation of separation of powers and a transgression of the power of Congress.

Santiago said the withdrawal will abolish parallel means not ordinary crimes but international crimes, war crimes genocide crimes against humanity, which are subject to international jurisdiction.

“It abolishes the right of the Filipino of means to be protected against criminal elements, rights to effective remedy against international crime. This is clearly a question without senate concurrence and it abolish parallel means to avail protection,” Santiago said.

The Court, he said, should declare the action of the President unconstitutional and should be voided.

The ponente or assigned decision-writer of the case, Justice Leonen, centered his questions on the legal standing of the PCICC, headed by former Commission on Human Rights chair Etta Rosales, adding that there has not been any actual legal injury or threat that the petitioners have experienced.

“It’s either you are premature or too late,” Leonen told Santiago.

The justice also warned that court, if it rules in favor of the petitioners, might be accused of deciding on a political issue since withdrawal from the treaty was an “offshoot” of the President’s exercise of his prerogative to conduct the country’s foreign policy.

“You are going to empower us so much, we are going to be powerful without being accountable to the electorate [if we decide in your favor],” Leonen said, adding that the two-thirds concurring vote in the Senate required for treaties was just a mere check on the President’s foreign policy-making powers.

Leonen said the President is the head of state and he is the one formulating the foreign policy of the administration and his action is a political decision based on how he feels his people should be protected.

He added that the human rights a what is being said by the President has been weaponized.

“You want this court to issue mandamus because you don’t want the decision of the President, because it did not get the concurrence of the Senate?” Leonen asked Santiago.

Leonen said the Senate concurrence, which is being used by the petitioner as their argumentation in asking the court to issued mandamus, is a check on a treaty which Santiago answered in the affirmative.

He told the petitioner of the possibility of the court ruling when there is no crime in action and the term of the president will end and it is up to the electorate if they agree with the decision come election time.

For his part, Senior Associate Justice Antonio Carpio, advanced a proposition that when the Senate concurred with the treaty, it also became a domestic law and could therefore may repealed by the two Houses of Congress passing a simple legislation.

Since the President is sworn to faithfully execute the treaty which has become part of the law, Carpio asked Bagares if the President may also abrogate or repeal a treaty by himself. Bagares disagreed.

Carpio’s theory was immediately challenged by other justices when they took their turns questioning the lawyers.

Justice Estela-Perlas Bernabe said there has not been a standing judicial interpretation for such a scenario while Justice Diosdado Peralta said the suit could be “sui generis” or unique as Rome Statute became a law by Senate concurrence and not passing through both houses of Congress.

Justice Lucas Bersamin said the Senate’s own rules did not provide for treaty withdrawal procedures.

Meanwhile, de Castro set the next oral arguments at 2 p.m. on Sept. 4 with the government to be represented by the Office of the Solicitor General.

On March 14, President Rodrigo R. Duterte announced the Philippines’ withdrawal of its ratification of the Rome Statute, a United Nations treaty creating the ICC. (PNA)