What the ICC pullout case means for Duterte and the Supreme Court

MANILA, Philippines – In 2011, the Philippines ratified the Rome Statute – an international treaty – and became a member-country of the International Criminal Court (ICC) afterwards. Now, President Rodrigo Duterte wants out.

It seems so foreign and unrelatable.

However, the core issue hits right at home: at stake are allegations that thousands of Filipinos allegedly died because of Duterte’s hardline campaign against criminality and drugs, starting from the supposed Davao Death Squad when he was mayor of Davao City to the war on drugs in the past two years of his presidency.

Communications or petitions filed with the ICC accuse Duterte of committing crimes against humanity, a grave offense under international law punishable by as much as life imprisonment.

Duterte unilaterally withdrew Philippine membership from the ICC last March as a response to the decision of the court’s prosecutor to launch a preliminary examination, the first stage of the proceedings which merely seeks to determine if the ICC has jurisdiction at all. (READ: Carpio: Duterte cannot withdraw from ICC by himself)

The ICC has a slow track record in completing preliminary examinations, with one example in Afghanistan taking more than a decade.

ICC withdrawal

Legal analyst Tony La Viña said that the petitions filed with the Supreme Court (SC) questioning Duterte’s unilateral withdrawal is important only in the sense that if and when the ICC prosecutor decides to charge him for crimes against humanity, “the President can question our previous membership.”

“In itself, the ICC withdrawal case is not so important except that the Court could once again rule in favor of executive control,” La Viña said.

A favorable ruling for Duterte in the withdrawal case could also have more damaging consequences, said constitutional law professor Dan Gatmaytan.

Based on Article 127 of the Rome Statute, proceedings that started prior to withdrawal, such as the preliminary examinations into killings under Duterte, would still be in effect even after the Philippines pulls out. 

But not if the SC declares the Rome Statute to be invalid from the very beginning, said Gatmaytan.

“For those who want to hold government accountable for the thousands of deaths associated with the drug war, the worst possible outcome of this litigation is a Supreme Court ruling that not only is withdrawal from the ICC a function exclusive to the executive, but that the Rome Statute never became effective in the Philippines,” Gatmaytan said.

Leonen’s caution

During the oral arguments at the High Court on Tuesday, August 28, Associate Justice Marvic Leonen cautioned against ruling on the petitions, saying it might turn the justices into “judicial dictators.”

Leonen said it is better to wait for the Senate to pass a resolution first on how to legally withdraw from a treaty, rather than the Supreme Court settling the policy now. 

“This Court may not want to become the judicial dictator of this country, overextending this power into realms which might be political in nature rather than legal,” Leonen said.

Leonen wants to avoid judicial overreach. In simple terms, he does not want the Supreme Court to impose its decisions, or even thwart those of the two other branches of government, which are considered the will of the people who elected them.

In the words of former Chief Justice Reynato Puno: “The Court should strive to work out a constitutional equilibrium where each branch of government cannot dominate each other, an equilibrium where each branch in the exercise of its distinct power should be left alone yet bereft of a license to abuse.”

Nobody wants an all-powerful Court, particularly in the context of an all-powerful president. 

But here’s another way to look at it. As Associate Justice Francis Jardeleza said, the Court is now forced to decide on the limits of the president’s power.

Remember that the Supreme Court has so far allowed Duterte to use his presidential discretion with liberty, especially when the Court upheld the constitutionality of his martial law in Mindanao. 

“A ruling that recognizes the Senate's checking powers on withdrawal from treaty obligations will necessarily rein in the President,” said Gatmaytan.

He added: “It would be significant because it would be the first time the Court will rule against President Duterte.” 

Given that the Supreme Court would be filled with Duterte appointees by 2022, a ruling on this case would give a good picture of where the judiciary is headed.

LISTEN to the oral arguments at the Supreme Court. Rappler.com

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

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