Experts blast SC's ICC ruling: New win for powerful Duterte

When the Supreme Court junked on mootness the petitions questioning President Rodrigo Duterte's unilateral withdrawal from the International Criminal Court (ICC), law experts said it was a win for the President.

"This victory gives President Duterte his latest win in this spotless record before the Supreme Court – probably the only president we've ever had who has never lost in the post-Marcos era," University of the Philippines (UP) constitutional law professor Dan Gatmaytan said in an online forum on Wednesday, August 11.

Experts agreed the decision was of little value, an obiter dictum or just reflections that are not legally-binding, and "an opinion nothing better than the opinion here in this forum," according to retired Supreme Court justice and eminent constitutionalist Vicente Mendoza.

If so, then what's the fuss?

The ICC ruling paints an interesting picture of law and politics in the time of Duterte. For retired ICC judge Raul Pangalangan, what the Supreme Court did was public positioning.

By coming out with a press release in March and only uploading the full decision late July, Pangalangan said "it's part of the Court positioning itself in public discourse."

The petitions were junked for being moot, saying the notice of the withdrawal was already accepted when the petitions were filed.

Gatmaytan said they could have written a two-page decision instead of 106 pages, "but they were considering a possible backlash so they went on and on and on to provide some guidance."

A clutter

The forum tore apart the ponencia of Associate Justice Marvic Leonen, former dean of the UP College of Law which hosted the forum.

By rejecting the lack of legal standing and transcendental importance of the petitions, Gatmaytan said the Court "fashioned new technicalities to be able to dismiss the case," adding that "it cluttered constitutional litigation with variants of old rules."

Gatmaytan said the petitions satisfied the rules on transcendental importance because of "perceivable benefits to the public," citing its potential effects on the victims of the drug war – an alleged crime against humanity that is pending a decision from the ICC should an investigation be launched.

Gatmaytan said the part where the Supreme Court reiterated that the Philippines is still obliged to cooperate with the ICC is "nothing new" as it is found on the Rome Statute itself.

"The Court could have – if it really wanted to – decided on this case," said Gatmaytan.

A 'narrow understanding'

Diane Desierto, a professor of law and global affairs at the Notre Dame Law School in the United States, said some parts of the decision showed "a narrow understanding" of international law processes.

Part of why the Supreme Court mooted the petitions is because the justices believe that the damage has simply been done and there's nothing much that could be done about it.

Duterte announced the Philippines' withdrawal on March 15, 2018, the notice was sent to the United Nations (UN) on March 16, and it was received by the UN Secretary-General on March 17.

Desierto said the Supreme Court did not take into account the fact that withdrawal takes a year before it goes into effect. The Philippines is only considered withdrawn on March 17, 2019.

"For the Court to say that it was irreversible, [that] what the President did was already foreclosed and it was completed, was in itself a narrow understanding of what the practices were at the ICC," said Desierto.

Desierto noted the case of Gambia. In November 2016, the government of Gambia notified that it would withdraw from the ICC but by February 2017, a new government was elected, and they retracted the withdrawal. The ICC let them stay.

"For the Court to say, with no reference to any international law sources, that there was no way to retract the withdrawal was wrong under international law," said Desierto.

Up to the Senate now

Retired Supreme Court justice Antonio Carpio said he "faults the Senate" for not having a resolution that categorically required their concurrence for withdrawal from international treaties.

That Senate resolution was blocked in 2017 by then Duterte ally, now foe, Senator Manny Pacquiao.

"I would fault the Senate here. The Senate should have stood its ground at the very start because there is always this tension among the branches of government," said Carpio.

Carpio said "this is a battle for turf" and the Senate must reclaim it.

"What the Senate should do is to say that the President can never withdraw unilaterally a treaty without the consent of the Senate, and they should be very categorical about that. The moment you show any doubt about your prerogative, you will lose it," said Carpio.

President above the law

A notable part of the decision – whether lawyers could agree if it's legally binding or not– is a seemingly new rule that a president could withdraw a treaty if he or she thinks that it's inconsistent with an earlier domestic law.

Before, a treaty, when ratified by the Philippines, is domesticated and would prevail over a prior inconsistent law.

"The decision has changed this constitutional setup. The President is now above the law because he can unilaterally abrogate or repeal a concurred treaty, which the decision admits has the status of a law and is transformed into a domestic law upon the Senate's concurrence, if the majority in the Senate does not make a timely objection before the Supreme Court or if the termination has already taken effect," said Carpio.

In an earlier interview, UP international law professor Andre Palacios said that while the decision gave much leeway to presidents, it still imposed a limitation on presidential power.

"Previously the idea is that the president is the sole architect of foreign policy with unlimited powers, so now it's clarified that the power is shared and the power is limited, and very detailed limitations," said Palacios.

UP Law Dean Edgardo Carlo Vistan said this decision shows a "power-defining moment" in Philippine politics when the executive acted loudly and the legislative, "the Senate in particular, chose to be silent."

"When called upon to address the situation and make its mark on this constitutional lawmaking exercise, the Supreme Court, in my view, essentially gave its imprimatur to the executive's action," said Vistan.

Desierto said, "I'm wary of a Supreme Court that gives complete deference to the President on all matters of foreign affairs and foreign policy."

"If there's one thing that we've learned here in the United States, giving untrammeled discretion to a president, without legislative oversight, is a recipe for disaster," Desierto said.

Rappler.com

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 lian.buan@rappler.com or tweet @lianbuan.

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