FULL TEXT: Duterte’s statement on Int’l Criminal Court withdrawal

MANILA, Philippines – Below is the complete text of the 15-page statement of President Rodrigo Duterte released on Wednesday, March 14, announcing that the Philippines would withdraw “immediately” from the International Criminal Court (ICC).

Rappler has typed the text as written in the document, including some typographical errors. 

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STATEMENT OF THE PRESIDENT

OF THE REPUBLIC OF THE PHILIPPINES

ON THE JURISDICTION OF

THE INTERNATIONAL CRIMINAL COURT

March 13, 2018

Enshrined in the Constitution is the fundamental provision that protects a person of not being deprived of his life, liberty, or property without due process of law, to wit:

“SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” (Section 1, Article III, Constitution) 

Due process of law has been defined as a process that hears before it condemns. It affords the accused the opportunity to be heard, to be informed of the nature of the offense charged, and a reasonable time to prepare for his defense.

The Constitution expressly gives the mantle of protection to a person charged and commands that:

“Section 14 (1). No person shall be held to answer for a criminal offense without due process of law.” (Section 14 (1), Article III, Constitution)

For a person to be charged with a criminal offense, there must be a law that shall specify a particular act as criminal with an imposition of a corresponding penalty – thus the latim maxim:

“Nullum crimen sine lege”

“There is no crime without a law making it so. One cannot be punished for doing something that is not prohibited by law.”

A person cannot invoke as a defense that he is ignorant of the law that penalizes a particular criminal act hence the basic legal principle, that: 

“Ignorantia juris non excusat or ignorantia legis neminem excusot”

“Ignorance of the law excuses no one from compliance therewith.”

“Dura lex, sed lex.”

“The law may be harsh, but it is the law.” 

A penal law to be enforceable must be effective. In our jurisdiction, it must be published in the Official Gazette within a certain period of time from its signing into law. 

An unenforceable law cannot vest jurisdiction on courts to try a charged person.

The courts must first acquire jurisdiction over the subject matter and over the person of a defendant. 

No law or a statute lacking in the required publication can vest any court of jurisdiction over the person of a defendant because it will violate the constitutional injunction that the person so charged must be informed of the nature of his offense.

Thus, the Constitution states:

“SECTION 14 (2). In all criminal prosecution the accused shall be presumed innocent until the contrary is proved, xxxx, to be informed of the nature and cause of the accusation against him, xxxx.” (Section 14(2), Article III, Constitution) 

How can the accused be informed of the nature of the offense, if he is not aware of the same because the law penalizing the act he is being charged with has not seen the light of day by way of a publication as required by law? 

In our jurisdiction, our country adopts the generally accepted principles of international law – and in fact they are deemed to be part of the law of the land, to wit:

“SECTION 2. The Philippines xxxx adopts the generally accepted principles of international law as part of the law of the land xxxx.” (Section 2, Article II, Constitution)

The constitutional provision above-quoted however is not absolute as any principle of international law even if generally accepted, if it contravenes our Constitution, cannot supplant nor diminish the Philippine Constitution.

Domestic laws are supreme over international law unless the former are violative of internationally recognized principles of justice.

At the same time, “[t]reaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the 1987 Constitution which provides that ‘[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.’” Given that a treaty or an international agreement has the force and effect of a law, the same cannot also go against the Constitution. Otherwise, such treaty or international agreement may be invalidated for being unconstitutional. 

In this regard, the Supreme Court, by virtue of Section 5 (2), Article VIII of the 1987 Constitution, has been given the authority to rule upon the constitutionality or validity of any treaty and international agreement.

Having laid the foregoing predicate, in relation to the preliminary examination being conducted by the International Criminal Court Special Prosecutor Fatou Bensouda, which she explained by saying that:

“The preliminary examination of the situation in the Philippines will analyze crime allegedly committed in the State Court since at least 1 July 2016, in the context of the ‘war on drugs’ campaign launched by the government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drugs use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the court of police authority operations.”

And while the International Criminal Court’s Special Prosecutor states that: 

“xxxx I emphasize that a preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute xxx.” 

I was appalled however by the fact that she has to make public announcements of the preliminary examination she is conducting thereby giving the false impression that the International Criminal Court has already acquired jurisdiction – or that the International Criminal Court will be acquiring jurisdiction, when she knows that before the International Criminal Court can acquire jurisdiction over me, it must be first firmly established that the state of the national being subject of the investigation is unwilling or unable to investigate or prosecute the national for the crime of genocide; crimes against humanity; war crimes and crime of aggressions.

The Special Prosecutor is also aware that national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes – as in her public declaration she recognized such basic principle, thus, she stated:

“xxx Under the Rome Statute, national jurisdiction has the primary responsibility to investigate and prosecute those responsible for international crimes, xxx.”

Moreover, the International Criminal Court’s Special Prosecutor is likewise aware that before placing the national under investigation, she must first reconsider issues of whether or not the International Criminal Court has jurisdiction over the person or the subject-matter complained of; whether or not the evidence submitted to it in relation thereto passes the rules on admissibility; and whether or not it is in the interest of justice that she makes such determination as shown in her public statement, to wit:

“xxx Specifically, under Article 53 (1) of the Rome Statute, I, as Prosecutor, must consider issues of jurisdiction, admissibility and interest of justice in making this determination.”

Given these foregoing considerations I cannot help but believe that the International Criminal Court’s Special Prosecutor’s premature public statements was intended to foist to the world that I am being subjected now to an investigation for crimes falling under the International Criminal Court’s jurisdiction. 

To my mind, the Special Prosecutor commended the preliminary examination in the wrong foot by picturing me as one who most likely has committed any of the crimes punishable under the Rome Statute violating therefore the presumption of innocence guaranteed me by our Constitution.

Let us tackle the questions on jurisdiction of the International Criminal Court, assuming that the preliminary examination ripens into an informed determination that there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Does the International Criminal Court  have jurisdiction over the subject matter? The answer must be in the negative.

The jurisdiction of the International Criminal Court  is limited to the most serious of crimes in the international community a.) crime of genocide b.) crime against humanity c.) war crimes and d.) crime of aggression.

The crime of genocide cannot be said to be applicable because the act must be committed with intent to destroy in whole or in part a national ethnical, racial or religious group as such: 

1. Killing members of the group
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group

The so-called war against drugs is lawfully directed against drug lords and pushers who have for many years destroyed the present generation specially the youth. The deaths resulting in the process of making lawful arrests arising from the violent resistance of the suspects that endangered the lives of the police officers cannot be said to have been committed against a national, ethical, racial or religious group.

Nor can they be considered crimes against humanity because the deaths is a direct result of a lawful exercise of a police duty, and under our criminal law, is a justifying circumstance that removes from the police officer criminal culpability, the same being an exercise of self-defense. The killing of the suspects cannot be said to be murder as there is no intent to kill rather an instinct exercise of self-preservation.

The campaign against illegal drugs does not also fall within the purview of a war crime because of the absence of the element of armed conflict, whether international or domestic.

The campaign against illegal drugs may not also be deemed as a crime of aggression because of the absence of the element of intention to control or direct the political or military action of another State.

What about the International Criminal Court’s jurisdiction over my person? Does the International Criminal Court have jurisdiction? 

The answer again must be in the negative for following reasons:

In our jurisdiction, it is required that a law before it takes effect, the same must be either published in the Official Gazette or in a newspapers of general circulation.

On August 30, 2011, the Philippine Senate ratified the treaty in the matter of the enforcement of the Rome Statute between the Philippine Government and the United Nations.

Official record particularly the Official Gazette, the Rome Statute or the law by which I am now being subjected to a preliminary examination was not published thereat. Neither is there any showing that the said Rome Statute was ever published in a newspaper of general circulation. 

There being no jurisdiction of the said law, it stands to reason that the Rome Statute cannot be enforceable in the Philippines hence the International Criminal Court has not acquired jurisdiction nor can it acquire jurisdiction over my person. 

Article 126 (Entry into force) of the Rome Statute providing that it becomes in effect on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification with the Secretary-General, to wit:

“Article 126

Entry into force

1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
2. For each State ratifying, accepting, approving or according to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the statutes shall enter into force on the first day of the month after the 60th day following the deposit by such state of its instrument of ratification, acceptance, approval or accession.”

cannot prevail over our domestic law, the New Civil Code, that requires the publication of a law in the Official Gazette or in a newspaper of general circulation to make it effective and enforceable, to wit: 

“ARTICLE 2. Laws shall take effect after fifteen days following the completion of their publication either on the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided,”

In the leading case of Lorenzo M. Tañada, Abraham F. Sarmiento, Movement of Attorneys For Brotherhood, Integrity and National [MABINI], Petitioners, V. Mon Juan C. Tuvera, in His Capacity As Executive Assistant To The President, Hon. Joaquin Venus, In His Capacity As Deputy Executive Assistant To The President, Melquiades P. De La Cruz In His Capacity As Director, Bureau of Printing, Respondents; the Supreme Court ruled:

“Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed was not published as required by law. The government argued that while publication was necessary as a rule, it was so when it was “otherwise provided”, as when the decrees themselves declared that they are to become effective immediately upon their approval. In the decision of this case on April 24, 1988, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive position as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.” 

“Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended.xxxx”

“It is not correct to say that under the disputed clause publication may be dispersed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the legislation could validly provide xxxx.”

“It is unlikely that persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with but simply because they did not know of its existence. Significantly, this is not true only if penal laws as it is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.”

“We note at this point the conclusive presumption that every person knows the law which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes the “right of the people to information on matters of public concern and this certainly applies to among others, and indeed specially the legislative enactments of the government.”

“We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless different effective date is fixed by the legislature.”

“We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the content of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such a decree, its whereabouts xxx the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement.”

“Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is likely a scabbarded saber that cannot persist parry or out unless that naked blade is drawn.”

Moreover, the ICC cannot subject the President of the Philippines to any investigation during his tenure following the doctrine of the immunity from suit of the President while in office. The immunity doctrine of the President is a basic constitutional doctrine that has been consitently upheld by the Supreme Court. While the said immunity is not explicitly stated in the 1987 Constitution, its framers unanimously agree that such doctrine is deemed written in the 1987 Constitution. Thus, considering that such immunity is part and parcel of the organic law of the Philippines, it cannot be removed through the enactment of a statute or be bargained away through the negotiation of a treaty.

In so far as Article 27 of the Rome Statute provides for the irrelevance of official capacity, in that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiciton over such a person,” the Rome Statute once again is violative of the 1987 Constitution. Therefore, as regards the Philippines, the President during the period of his tenure, can never be subject to the jurisdiction of the ICC.

EFFECTS OF BELATED PUBLICATION

It may be that the International Criminal Court’s Special Prosecutor or the International Criminal Court itself having been informed by the glaring and fatal error of lack of publication of the Rome Statute would now cause the publication of the aforesaid law thereafter, the question arises: Would the belated publication cure the mistake and place my person under its jurisdiction?

The answer cannot be in the affirmative.

The Constitution provides that no ex post facto law shall be enacted, stated differently it means that one cannot be prosecuted for acts committed before the effectivity of the law that makes those acts criminal. 

The International Criminal Court does not have retroactive jurisdiction. It may only consider crimes committed after the Rome Statute has come to force.

Since the Rome Statute is deemed to be ineffective and enforceable by reason of the lack of publication required by our domestic law, necessarily, it cannot acquire jurisdiction over any person as the acts complained of were committed prior to its effectivity.

PHILIPPINES WITHDRAWING AS SIGNATORY IN THE ROME STATUTE

At the onset of my presidency, there appears to be a systematic assault by the United Nations as well as its special rapporteurs not only on my person but on my administration as well, more particularly on the relentless campaign against the proliferation of illegal drugs industry in the country.

Special rapporteur Agnes Callamard, without proof, and merely relying on news reports and accusations from my critics, have embarked on a campaign against me before the international public and has pictured me as a ruthless violator of human rights and directly responsible for the deaths of its suspects which she describes as extra-judicial killings. 

Recently, two Filipino United Nations special rapporteurs, Victoria Tauli-Corpuz and Cecilia Jimenez-Damary made public announcements effectively accusing the Philippine government of human rights abuses, killings, and attacks being carried by members of the armed forces against the indigenous communities. 

The United Nations High Commissioner for human rights, Zeid Ra’ad Al Hussein, has joined the United Nations special rapporteurs in maligning my person by saying that I should submit myself to psychiatric examination. He likewise accused me of attacking the “special rapporteur of committing “widespread extra-judicial executions” and engaging in “on-going attacks against voices who are critical of the current appointment, including human rights defender.”

As stated earlier, the International Criminal Court’s Special Prosecutor Fatou Bensouda gave a premature public announcement of a preliminary examination thereby creating the impression that I am likely to be charged before the International Criminal Court violating therefore the presumption of innocence accorded me by the Constitution. The accusations of these United Nations officials have the effect of painting me guilty before the eyes of the world. There appears to be a concerted effort on those aforesaid United Nation officials to paint me as a ruthless and heartless violator of human rights. 

When the Philippine government made itself a signatory to the Rome Statute, it was on the assumption that the internationally accepted principles of justice in relation to our Constitutional requirement on due process will be upheld.

Given the baseless, unprecedented and outrageous attacks on my person as well as against my administration, engineered by the officials of the United Nations, as well as the attempt by the International Criminal Court special prosecutor to place my person within the jurisdiction of the International Criminal Court, in violation of due process and the presumption of innocence expressly guaranteed by the Philippine Constitution and recognized no less by the Rome Statute, I therefore declare and forthwith give notice, as President of the Republic of the Philippines, that the Philippines is withdrawing its ratification of the Rome Statute effective immediately.

I also give notice that Article 127 of the Rome Statute providing that:

“Article 127

Withdrawal

1. A state may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”

is not applicable in so far as the effectivity of the withdrawal of the Philippines as a signatory to the Rome Statute is concerned, for the reason that there appears to be fraud in entering into such agreement.

The Philippines in ratifying the Rome Statute was made to believe that the principle of complementarity shall be observed; that the principle of due process and the presumption of innocence as mandated by our Constitution and the Rome Statute shall prevail; and that the legal requirement of publication to make the Rome Statute enforceable shall be maintained.

In addition, it is worthy to note that out of the five (5) permanent members of the United Nations Security Council, only France and the United Kingdom are State Parties to the Rome Statute, While the United States signed the Rome Statute on December 30, 2000, then President William Jefferson Clinton refused to submit the Rome Statute to the Senate of the United States for ratification because of serious concerns, among others, on the possibility of politicized prosecutions, and even recommended that his successor defer such submission until such time that said concerns are properly addressed. Thereafter, on May 6, 2002, the United States, under the administration of then President George H.W. Bush, transmitted a letter to the United Nations Secretary-General, stating that “the United States does not intend to become a party to the treaty.” In line with the politicization of the ICC, Burundi withdrew from the ICC effective October 27, 2017 because “[t]he ICC has shown itself to be a political instrument and weapon used by the west to enslave [other states].”

The actuations and statement of the UN special rapporteur Agnes Callamard and the UN High Commissioner on Human Rights Zeid Ra’ad Al-Hussein readily show international bias and refusal of some sectors of the international community to support the Philippine’s legitimate efforts at self-determination, nation building and independence from foreign influence and control. Coupled with the implication of culpability that the preliminary examination by the Prosecutor Fatou Bensouda unduly and maliciously created, it is apparent that the ICC is being utilized as a political tool against the Philippines. Given that the ICC shows a propensity for failing to give due respect to the State Parties of the Rome Statute and that there is clear bias on the part of the UN against the Philippines, the Philippines may very well consider withdrawing from the Rome Statute.

As demonstrated above, the very considerations upon which the Philippines agreed to be a signatory to the Rome Statute have not been observed nor complied with hence the Philippines hereby withdraws from the Rome Statute. 

 

RODRIGO ROA DUTERTE

– Rappler.com