Rebus sic stantibus? SC aspirant says Duterte can unilaterally withdraw from ICC

MANILA, Philippines – Lawyer Rita Linda Jimeno told the Judicial and Bar Council (JBC) on Thursday, October 18, that President Rodrigo Duterte has basis to unilaterally withdraw from the International Criminal Court (ICC).

The main contention to the withdrawal is that the president supposedly needs the concurrence of the Senate to withdraw. Under the Constitution, the Senate must concur to pass a treaty, but is silent on withdrawal. The lack of a clear text is what’s in dispute at the Supreme Court, which has finished oral arguments on petitions seeking to nullify the withdrawal.

JBC member retired justice Jose Mendoza was doing the questioning, when he started to ask about treaties in reference to the withdrawal. Mendoza offered the doctrine "rebus sic stantibus” which, in international law, is the doctrine that renders treaties inapplicable when there are significant changes in circumstances. 

Mendoza had to explain to Jimeno what the doctrine means, as the Associate Dean of the Centro Escolar University (CEU) Law School said she could not recall.

“Can the president apply the doctrine of rebus sic stantibus to unilaterally withdraw from treaties?” Mendoza asked. (READ: Why usual dissenter Leonen leans toward Duterte in ICC pullout case)

Jimeno answered: "Yes, Your Honor, because under that principle, if there are substantial changes in the circumstances which would then completely change what was agreed upon, then the president may withdraw from a treaty that was earlier signed by him and even affirmed or ratified by the Senate.” 

Mendoza did not ask Jimeno to expound, or cite example of what change in circumstances will apply in the ICC pullout.

Filipino lawyer Emerlynne Gil of the International Commission of Jurists (ICJ), among the advocates pushing for the Philippines to remain in the ICC, disagreed that there is a fundamental change.

“There is no fundamental change in the circumstances in the Philippines that would make the Rome Statute inapplicable in the country. In fact, because of the entrenchment of impunity in the country, it is all the more important for us to be a party to the Rome Statute,” Gil said.

Who is Jimeno?

Jimeno is among the 12 applicants for the associate justice vacancy at the Supreme Court, the second to the last vacancy at the Court this year. 

She is a managing partner at the Jimeno Cope & David Law Offices, and specializes in family law.

Jimeno also said during the interview that she believes that the husband’s consent is needed for the wife to abort their child.

Jimeno is the mother of lawyer Karen Jimeno, who was one of the defense counsels of the late Chief Justice Renato Corona.

Jimeno was asked to assess the Supreme Court following Corona’s impeachment and the quo warranto ouster of Maria Lourdes Sereno.

"Compared to how it was before, it is now more stable and more calm in the eyes of the public because there are no longer disputes questioning the appropriateness or propriety of one justice sitting as a justice of the Supreme Court," Jimeno said.

Out of the 12 applicants, Jimeno and former Ateneo Law Dean Cesar Villanueva are the only two who are not from the judiciary. Sandiganbayan Justice Alex Quiroz is the other applicant, while the rest are all justices of the Court of Appeals.

Jimeno said her experience as an arbitrator in commercial disputes will make up for the lack of experience in the judiciary. 

There is a pending criminal complaint at the Department of Justice against Jimeno filed by pre-need plan holders. Jimeno said she was only dragged to it after her company bought shares of the embattled insurance company when the latter applied for corporate rehabilitation. "The successor company, which I used to hold one share, did not sell any of these plans that are the subjects of these complaint," Jimeno said.

JBC member Milagros Fernan Cayosa reminded her that when they reach deliberation time and the complaint is still pending and has not been dismissed to her favor, it may become basis of disqualification. 

JBC conducts panel interview of applicants for an associate justice post at the Supreme Court. Because most applicants have already been interviewed, only 2 face the panel – Atty Rita Linda Jimeno and Sandiganbayan Justice Alex Quiroz @rapplerdotcom — Lian Buan (@lianbuan) October 18, 2018

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.