Why usual dissenter Leonen leans toward Duterte in ICC pullout case

MANILA, Philippines (UPDATED) – Supreme Court Associate Justice Marvic Leonen, the consistent dissenter against President Rodrigo Duterte, seems to be leaning toward the executive department this time over the country's unilateral withdrawal from the International Criminal Court (ICC).

Leonen indicated on Tuesday, October 9, during the ICC oral arguments that the petitions questioning the withdrawal may have been filed too late, because the ICC, as well as the United Nations, have already accepted the withdrawal.

“The right time to file a petition would have been before (the withdrawal) was deposited, and in order for us to become a party again, we need to sign the treaty again, and we need to ratify again. As I said others may not want the political result, but this may be what our law requires,” Leonen said.

Leonen also said the Rome Statute, which created the ICC, does not make it clear if it’s possible to retract a withdrawal. Even if it does, the justice said it would cause the Philippines international embarrassment. (READ: Justice Carpio: Leaving the ICC will weaken Philippine stance vs China)

Citing a previous Supreme Court decision, Leonen said “the existence of a political question can occur if there is potential embarrassment in foreign relations, that was very clear.” Political question is usually invoked by the executive department if it doesn’t want its acts stepped on by the judiciary.

Leonen added that there are other provisions in the Rome Statute that allow for a withdrawal of a member country, which, the justice said, means the Philippines’ withdrawal does not violate jus cogens or the peremptory norm. In international law, jus cogens means a globally-acknowledged law that parties cannot turn away from.

“At best it is only an articulation of customary law,” Leonen said. (READ: International Criminal Court issue will mark Duterte presidency)

No to judicial dictatorship

Leonen practically guided Solicitor General Jose Calida through the one-hour long interpellation, providing all the answers for the government lawyer.

For a justice who has issued scathing dissents against Duterte-interest cases before, and who, at one point even called the Supreme Court an enabler of an “emboldened authoritarian” – referring to Duterte over martial law in Mindanao – Leonen seemed to want to just allow Duterte to use his own discretion on this one for now.

The reason? He wants to practice judicial restraint, and avoid turning the Court into “judicial dictators.”

“We are averse to the dictatorship of anybody, whether it be the president having the powers, or on the other hand, the judiciary as dictators,” Leonen said.

Under this concept, the Supreme Court, a non-elective body, is advised not to supersede the policies of the elected officials, policies which can be interpreted as being the same as the will of the people who elected them.  

“Between the executive and this Court, it is the executive that represents, the Court only interprets. None of us were elected by a majority in a free election. We have to keep in mind that our interpretation must always, that we always interpret the law and the Constitution with the caution that we can overturn or replace the discretion of a political agency,” the justice said.

To further explain himself, Leonen said that while the result of the restraint may not be what the justice wants, “the justice or the judge (must) be able to rule differently because that’s what the law or the Constitution says.”

Longtime debate

It is a debate that has confronted the Court ever since, and in fact, an issue that is asked of jurists applying for the Supreme Court even today.

During the term of former president Diosdado Macapagal, the chief executive slammed the Court for overturning his decision to fire one of his Cabinet members.

Macapagal’s justice secretary at the time, Juan Liwag, said he “dreaded to see the day the Supreme Court would virtually run the affairs of the government under the guise of judicial review.”

“Macapagal felt that way. How could the Supreme Court block his appointments, his choices of people to run the government, and with whom he was going to work to reform the economy and society? How could the unelected overrule a popularly elected official?” wrote veteran journalist Marites Vitug in her groundbreaking book, Shadow of Doubt: Probing the Supreme Court.

Just this August, Leonen was the lone dissent when the Supreme Court issued new rules allowing for a precautionary Hold Departure Order or HDO, the reason being, that it amounted to judicial legislation.

On Tuesday, Leonen once again ventured into that. The justice reiterated that it's better for the Senate to first pass a resolution expressly requiring concurrence in the withdrawal of a treaty. (It was a resolution already drafted but blocked by administration ally Senator Manny Pacquiao in February 2017.)

The lack of a Senate concurrence in the withdrawal is one of the main points in the petitions questioning it, and Leonen doesn't believe that the Supreme Court should settle the issue for the Senate.

“The Constitution has already said that the legislative power is vested only in one body, and the legislative power is vested only in the Congress of the Philippines. We have to be careful for the judiciary not to actually replace our political discretions because we are not elected representatives,” Leonen said.

Associate Justice Francis Jardeleza has pointed out before that the ICC pullout case would test the power of presidential discretion. For Duterte, it is a power that has consistently prevailed in the Supreme Court.

Leonen stressed that there is no way that the ongoing ICC preliminary examinations into the war on drugs would be affected by the Philippine withdrawal. Senior Associate Justice Antonio Carpio thought so too, and even got Calida to agree.

"Is it just noise that the Rome Statute (may be) void from the start?" Carpio asked, to which Calida replied, "I agree with you."

Groups have expressed fear that leaving the ICC for good would be detrimental to upholding human rights in the Philippines. Leonen said this is a "colonial" mindset of relying on others rather than our own courts, and stressed that one must think of the long term. 

“This Court should have a longer vista that political winds can change, and when that happens then it might be the reverse, that another group that does not want a future president’s policy will again want this Court to veto. And therefore we always have to anchor our views on principles and the words that we find in the Constitution and statutes, rather than on the political result that we want,” said Leonen. – 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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