Playing the cards right? Politics of ICC oral arguments

Lian Buan

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Playing the cards right? Politics of ICC oral arguments
Is it a good idea to bring the issue to the Court? And what added value will Leila de Lima’s personal participation bring?

The Supreme Court postponed to August 28 the oral arguments on the legality of the Philippines’ withdrawal from the International Criminal Court (ICC). The SC’s decision to postpone comes after minority senators asked for the deferment because they “do not have a representative for the oral arguments” originally set for Tuesday, August 14.

Senators Francis Pangilinan, Franklin Drilon, Paolo Benigno “Bam” Aquino, Leila de Lima, Risa Hontiveros, and Antonio Trillanes IV filed as early as May one of the two petitions challenging the legality of President Rodrigo Duterte’s withdrawal from the ICC. The other petition was filed by the Philippine Coalition for the ICC or PCICC.

The senators filed a motion for the detained De Lima to represent them, and argue at the Supreme Court.

By a vote of 10-2, the SC en banc denied the motion last week and said there is no compelling reason why De Lima must be granted a furlough to personally argue their case before the High Court. The senators’ reasoned that De Lima was the best person to represent them at the SC.

Ten justices said there was no sufficient proof why only De Lima – and not any other lawyer – could represent the senators.

“It does not appear that her and her co-petitioners’ cause would be prejudiced by another counsel appearing in her place,” said a briefer from the SC.

“The Court also noted that Senator De Lima did not, at any time, plead circumstances or competencies exclusive to her which make her appearance, to the exclusion of her co-petitioners, imperative and indispensable,” the SC added.

Only Senior Associate Justice Antonio Carpio and Associate Justice Francis Jardeleza voted to allow De Lima’s participation.

The senators’ appeal on the denial is still pending.

The politics of it

De Lima’s personal participation in the oral arguments is not a matter of human rights. Even the senators’ pleadings do not invoke human rights, or even a constitutional right.

Both motions of De Lima and the other 5 senators merely asked the Court to allow a member of Congress to argue cases in their capacity as “real parties-in-interest representing themselves before the Honorable Court.”

The SC does allow members of Congress to join oral arguments, as Albay First District Representative Edcel Lagman did during the martial law oral arguments. The difference between Lagman and De Lima is that the latter is detained, and needs court permission to get out of her cell.

The move therefore could be viewed as political, and the justices took note.

“The Court also pointed out that the subject of the consolidated petitions are intensely, politically-charged matters. It, thus, exhorted all parties to be tactful and sober and to refrain from any posturing that may detract from a dispassionate, level-headed resolution,” said the SC.

Legal analyst Tony La Viña disagrees, saying De Lima has special skills that would merit her participation.

“She was, in fact, the Secretary of Justice when the Aquino government ratified the Rome Treaty. She would be in the best position to inform the Court of the rationale of that action,” La Viña said.

Gamble of the filing

But were the petitions a wise move in the first place? 

There is concern in legal circles that the petitions might not be the best move, as they may provide an escape route for Duterte as far as the war on drugs probe is concerned. (READ: ICC’s track record and what it means for Duterte and the PH)

Duterte withdrew the Philippines from the ICC in response to the move of ICC Prosecutor Fatou Bensouda to launch preliminary examinations into the President’s bloody war on drugs.

The ICC will have jurisdiction over the war on drugs case if it satisfies the principle of complementarity, meaning, that the ICC will only step in when the Philippine justice system is proven unable or unwilling to investigate the case itself.

Duterte argues that the ICC does not have jurisdiction over the war on drugs because our local courts are competent enough. In his view, the ICC violated the principle of complementarity, which was a principle agreed upon when the Philippines signed the Rome Statute – the treaty upon which our ICC membership is based on.

Therefore, for Duterte, this violation means the Rome Statute is invalid. There are also other arguments like non-publication in the Official Gazette, and the trickiest part of all, that Congress’ concurrence is not required to withdraw from a treaty. 

There is no clear and explicit law that says Congress’ concurrence is required.

According to a legal source, letting the situation stay where it is would allow Bensouda to continue her preliminary examinations, and possibly, proceed to investigation. 

Article 127 of the Rome Statute says that withdrawal takes effect only after one year, and that proceedings which started before the effectivity will not be affected.

Filing the petition opened the door for the SC to invalidate the Rome Statute and completely void Bensouda’s probe, said the source.

This sentiment of course falls within the context of the SC’s record of voting in favor of the interests of the Duterte administration. 

“For human rights advocates and for those who believe that we should be a member of the ICC, there is a certain risk in bringing it to the SC given the political atmosphere where the SC is operating now,” said Human Rights Commissioner Roberto Cadiz.

After the ouster of former chief justice Maria Lourdes Sereno, court observers such as La Viña said the SC should hand down decisions that will fix perception and restore public trust in the High Court.

There seems to be a gamble that the ICC withdrawal could be such decision. 

As the SC said, this is an intensely politically-charged matter. Are the petitioners playing their cards right? –

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.