MANILA, Philippines – Supreme Court Senior Associate Justice Antonio Carpio is pushing the envelope when it comes to challenging the policies of President Rodrigo Duterte.

Carpio said on Tuesday, October 9, that Duterte’s unilateral withdrawal from the International Criminal Court (ICC) will weaken the Philippines’ position against China.

“We are giving up a very strong legal deterrent against Chinese invasion of Pag-asa island (Thitu island) or military occupation of Scarborough shoal,” Carpio said, his words being the last during Tuesday’s oral arguments on the petition questioning the validity of the ICC withdrawal.

Not only did Carpio oppose the ICC withdrawal, which he has done before by saying the President cannot unilaterally make that decision, but the senior justice also challenged another major Duterte policy of keeping warm ties with China.

Carpio is doing this despite an impending chief justice nomination. Carpio had recently said he has no more reason to decline his automatic nomination as chief justice. 

This would test Duterte’s words, because the President had earlier said seniority would be his main consideration for appointments in the Supreme Court. Carpio is the most senior justice.

Chief Justice Teresita Leonardo de Castro retires on Wednesday, October 10. 

Crimes of aggression

Carpio explained that if China invades Pag-asa island, or if it builds a naval base on Scarborough Shoal, the Philippines could sue China for crimes of aggression.

However, crimes of aggression are a new amendment to the Rome Statute that the Philippines has not yet ratified.

“Before we could ratify, we already gave our notice to withdraw,” Carpio said, adding that “we cannot take advantage of this legal defense anymore because we are withdrawing from the Rome Statute.”

Solicitor General Jose Calida said the Philippines could resort to another international treaty, but the lawyer for Duterte could not name a specific alternative treaty.

Carpio said there is none.

“This is the only international treaty that will hold political and military leaders individually accountable before an international tribunal. No other,” declared Carpio, who is one of the country’s foremost authorities on China and the West Philippine Sea.

Carpio and Duterte, who both come from Davao City, have clashed on this touchy topic. In a speech in May 2017, Duterte said of Carpio: “Daldal nang daldal, eh putang ina wala namang ginagawa noon (He’s all talk but that son of a bitch did nothing before.)

Duterte hits SC Justice Carpio on West PH Sea issues. Related: https://t.co/7ENThSmSd5, https://t.co/j4mhuP7UOG, https://t.co/VLtkmfFwSD pic.twitter.com/hlEIceCDYR

— Rappler (@rapplerdotcom) May 31, 2017

Duterte earlier said he doubts Carpio would accept a chief justice nomination, but it seems the senior justice is up to the challenge.

Applicants and nominees for chief justice have until October 15 to send their confirmations to the Judicial and Bar Council or JBC. – Rappler.com