MANILA, Philippines – It will be a throwback of sorts on Tuesday, September 4, when senators present before the Supreme Court their case for Philippine membership in the International Criminal Court (ICC).
In 2005, former senator Aquilino “Nene” Pimentel Jr went to the Supreme Court asking to compel Malacañang to transmit the Rome Statute to the Senate so it can finally be ratified, and the Phillipines can finally become a member of the ICC.
This time, the opposition senators are asking the High Court to compel Malacañang to seek the Senate's approval first before it can withdraw from the ICC. Former Akbayan representative Barry Gutierrez will be arguing the senators’ case on their behalf on Tuesday, starting at 2 pm.
Gutierrez entered his appearance as counsel for the senators, after the Supreme Court denied the appeal to grant a furlough for detained Senator Leila de Lima, so she can argue the case herself.
“Atty Gutierrez is a veteran of several oral arguments before the Court. His representation of progressive causes in cases before the Supreme Court has distinguished him as one of today’s staunchest defenders of freedom and human rights,” De Lima said in one of her dispatches written from her detention cell in Camp Crame.
Pimentel vs Executive Secretary
The throwback case – known as Pimentel vs Executive Secretary – however, puts the senators at a little bit of a disadvantage.
In 2005, Pimentel lost his petition when the Supreme Court ruled that the President cannot be compelled to bring the Rome Statute to the Senate for ratification.
The Philippines signed the Rome Statute in 2000, but it couldn’t be ratified right away because Malacañang did not want to go to the Senate for concurrence.
In this decision, the Court said: “This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.”
In defending President Rodrigo Duterte’s unilateral withdrawal, Solicitor General Jose Calida cited Pimentel vs Executive Secretary and told the SC in his comment: “The Honorable Court has consistently recognized such authority in its rulings, declaring the President as the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
The Rome Statute was ratified only in 2011, after years of lobbying from groups and individuals that ironically included now Presidential Spokesperson Harry Roque.
In his oral arguments on Tuesday, Gutierrez would have to explain why Duterte’s withdrawal without the concurrence of the Senate is invalid.
The senators’ petition is anchored on Article VII, Section 21 of the Constitution which says: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
As pointed out by the justices in the first hearing on August 28, however, the provision only covers entry into a treaty, and not withdrawal.
Associate Justice Francis Jardeleza said the lack of a textual basis forces the Court to decide on which carries more weight: the principle of check and balance by the two branches, or the discretionary powers of the president?
But Associate Justice Marvic Leonen made the point that Duterte’s withdrawal is a “completed act” because the Philippines has already transmitted its notice of withdrawal to the United Nations (UN) and it was not rejected. The withdrawal officially becomes effective after one year, in March 2019.
Leonen expressed apprehension about the Court “issuing a writ of mandamus to a co-equal branch of government on the basis of interpretation that there is a ministerial duty to withdraw" with the Senate's concurrence.
A writ of mandamus is an order, and a ministerial duty means official duty with no room for discretion.
In Pimentel vs Executive Secretary, the SC ruled that the president has no ministerial duty to transmit the Rome Statute to the Senate as he is the “chief architect of foreign policy.”
The only remaining incumbent justice from the 2005 Court is Senior Associate Justice Antonio Carpio, who said during the August 28 oral arguments that Duterte cannot withdraw from the treaty by himself.
It will be up to Gutierrez, the senators, and co-petitioners Philippine Coalition for the ICC to convince the Court to rule somewhat differently.
After all, Pimentel vs Executive Secretary is about entry to the ICC, while this case is about withdrawal from the ICC.
Circumstances are different, the political landscape is different, and the Supreme Court – most of all – is different.
Tune in to Rappler’s coverage of the oral arguments starting 2 pm. – Rappler.com
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