The Supreme Court on ICC

Those who post stupidity in social media about the current debates on the ICC, please check your facts and know about what the Philippine Supreme Court declared about ICC jurisdiction.

If I were the examiner in this year's Bar Exams in Political and Constitutional Law, I might ask the jugular legal questions resolved by the Supreme Court, en banc, in the case of Francis Pangilinan vs. Alan Peter Cayetano GR no 238875, decided on March 16, 2021 through the pen of Justice Marvic Leonen.

The case involved the withdrawal from the Rome Statute by then president Rodrigo Duterte after some cases were filed before the International Criminal Court for extra-judicial killings allegedly committed when Duterte was still Davao mayor. This is important because it educates us all on the Rome Statute and the ICC.

Pangilinan’s petition was followed by a similar petition filed by the Philippine Coalition for the ICC and a third petition also filed by the Integrated Bar of the Philippines. The three petitions were consolidated.

Leonen’s decision started with three opening paragraphs: "Treaties may effectively implement the constitutional imperative to protect human rights and consider social justice in all phases of development, but so can a statute, as RA 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, does."

He postulated: "The president, as primary architect of our foreign policy, and as head of state, is allowed by the Constitution to make preliminary determination on what, at any given moment, might urgently be required in order that our foreign policy may manifest our national interest."

Unfortunately for the petitioners in the three cases, and perhaps also for the Filipino people, the Supreme Court had to dismiss the petitions based on procedural and technical reasons. Thus, "Absent a clear and convincing showing of a breach of the Constitution or a law, brought through an actual and live controversy, by a party that presents direct, material injury as a result of such breach, the Court will stay its hand in declaring a diplomatic act unconstitutional."

The decision declared that the Supreme Court respects the acts made by a co-equal branch of government, and that the president is the primary architect of foreign policy and enjoys a high degree of flexibility to withdraw from treaties. But the ruling said such leeway doesn’t authorize the president to unilaterally withdraw from a treaty if there is a subsequent legislation which affirms and implements it.

In other words, instead of ratifying the withdrawal made by President Duterte, Congress passed Republic Act 9851 which reiterates most of the provisions of the Rome Statute. The Supreme Court emphasized that a treaty cannot amend a statute and that statutes are more powerful than treaties. A treaty is merely entered into by the president and ratified only by one chamber of Congress, the Senate. On the other hand, a statute is passed by both upper and lower chambers and approved by the president.

It added that the president's power to withdraw from a treaty is subject to the condition that the treaty is unconstitutional, or contrary to the provision of an existing and prior statute. "However, the president may not unilaterally withdraw from a treaty (a) when the Senate conditionally concurs such that it requires concurrence also as to withdrawal, or (b) when the withdrawal itself will be contrary to a statute or to a legislative authority to negotiate and enter into a treaty or an existing law which implements a treaty."

Therefore, the dismissal by the Supreme Court of the three petitions wasn’t because the petitions were without merit. Rather, they were dismissed because the passage of Republic Act 9851, a superior legislative measure signed by President Arroyo mooted the issue. The Supreme Court said there was no need to deal with these petitions because RA 9851 effectively obliterated the intended consequence of Duterte's unilateral withdrawal from the Rome Statute.

In this case consolidated case we can find many strong arguments against Duterte's case before the Supreme Court, and also against President Duterte's procedural defenses before the ICC.

I am positive that these issues will be asked in the upcoming Bar exams. And may the future lawyers answer the question with strong arguments for or against. Their dissertations will definitely elevate the quality of national discourses.

And those who are very noisy blabbering inanities better learn the fundamentals first before spreading stupid comments on social media, or misleading listeners with fallacies.