Changing tune

In a pre-Christmas event in Tarlac, Vice President Sara Duterte expressed her wish for every Filipino household: peace, love and joy. I share the sentiment. For many kababayans in all corners of the globe, the family is front and center of this happiest day in the Christian world. Whether in the flesh or spirit, as in the case of our overseas workers and Filipino immigrants, we find ways to celebrate the Birth of the Savior Jesus with our loved ones.  

May we continue to be a blessing to our kababayans and the nation. Maligayang Pasko po!

Speaking of the festive season, I am positive the Duterte family would have a fine celebration despite being in the maelstrom of politically motivated controversies in the last half of 2023. Recently, I received disturbing information from unimpeachable sources. First is the apparent about-face of the Marcos administration regarding the International Criminal Court (ICC) and its decision to investigate human rights abuses related to the Philippine war on drugs from 2011 to 2019. The victims’ representatives have identified former president Rodrigo Duterte and Inday Sara as among the personalities responsible for the bloody anti-drug campaign.

Second, the government seems keen on cooperating with the ICC Prosecutor and other investigators. I learned from my source that several foreigners allegedly affiliated with the Court has frequented the law office assisting the alleged victims of the drug war. I am afraid to say that the government may have already allowed these individuals to proceed with the investigation. It violates our Constitution since we are no longer a State Party to the Rome Statute.

Previously, the government has reiterated its disengagement with the Hague-based tribunal following our membership withdrawal in 2019. In July, President Bongbong Marcos Jr. stressed the “Philippines is done with the ICC” after the Appellate Court rejected our appeal against the probe.

But in November, the Chief Executive seems to have backtracked. It was around that time a rumored destabilization plot against his government surfaced. Marcos said the government is studying the possibility of the Philippines returning to the ICC fold.

It is a departure from the original stance adopted by the Marcos government months after the unprecedented election victories of PBBM and Inday Sara. In August 2022, the President invited me to a meeting concerning the Philippine position on the ICC probe. Present at the meeting were Presidential Legal Counsel Juan Ponce-Enrile, Department of Justice Secretary Boying Remulla, Solicitor General Meynard Guevarra, then Executive Secretary Vic Rodriguez and Special Presidential Assistant Anton Lagdameo Jr.

I told the President that the country is not obligated in any way to cooperate with the ICC because we are no longer a member. It also means that the Court lost its legal jurisdiction to investigate, prosecute and try individuals suspected of committing crimes against humanity in our territory. Why? The ICC lacks judicial cognizance of the case. The Pre-Trial Chamber (PTC) only authorized the preliminary investigation in 2021, which is two years after our membership withdrawal officially took effect. It is different from the preliminary examination – an informal process that does not involve the PTC – conducted by the Prosecutor prior to 2021. I also informed PBBM and the legal team that the ICC jurisdiction does not have a retroactive effect. The Court cannot regain it even if the Philippines decides to resume ICC membership in the future. Likewise, it cannot probe crimes while the country was not a State Party to the international treaty.

I also advised PBBM that cooperating with the Court would infringe on our national sovereignty and independence. The Constitution vests the judicial power on our Supreme Court and lower courts to settle controversies involving legally demandable and enforceable rights (Article 8). The President and his team agreed with my legal opinion.

My position then and now remains the same. Two Appellate Court judges – who dissented on the majority decision to allow the resumption of the ICC investigation – align with my views. They opined that the Court cannot exercise jurisdiction since the Philippine withdrawal from the Statute became effective before the Prosecutor requested authorization for a probe. They said it differs from the case of the Republic of Burundi, the first member to deposit a written notification of withdrawal from the Statute in 2016. The PTC retained jurisdiction over the Burundi situation because the former Prosecutor was authorized to investigate within a year after the country’s withdrawal took effect. The Appellate judges added, “Once the State’s withdrawal has become effective, the Prosecutor can no longer open an investigation.”

The Majority, meanwhile, noted that the Philippine panel failed to properly raise the issue of jurisdiction before the PTC. I found out later that the pleading submitted by the Office of the Solicitor General devoted only a paragraph that challenged the Court’s jurisdiction. The dissenting judges said the PTC erred in law on the issue of jurisdiction. Further, they would have ordered the Chamber to discontinue all proceedings related to the Philippine situation.

So, what could have provoked PBBM to change his mind? My informant revealed that the President was dismayed by the destabilization rumor allegedly involving retired military officers and FPRRD. Indeed, Mayor Digong met with the veterans. However, the same officers reportedly disclosed their discussion with FPRRD to the President. In reaction, Marcos started having second thoughts about completely disengaging with the ICC.

I am not privy to Digong’s conversation with the veterans. But knowing my former boss, he has established close ties with officers who served under his administration. He is also respectful of the military and police chain of command. He has high regard for Filipino soldiers who put their lives on the line to protect the country from terrorist and extremist organizations as well as foreign incursions into our territory and economic zone.

I do not see any reason why the government should be suspicious of FPRRD’s periodic meetings with these people. As a former president of the Republic and a man of law, Digong would never breach his allegiance to the Republic. He would not dare resort to any extraconstitutional or illegal means to replace the first majority-elected president in decades. He would not lead a destabilization plot against this government because his daughter is a Cabinet member with two concurrent designations.

To my knowledge, both PBBM and Inday Sara remain pillars of an increasingly fractious UniTeam alliance. Destroying the President means dragging the Vice President down with him. Ergo, united they stand, divided they fall. It only takes common sense to figure it out.