Political Tidbits is the prestigious column of Belinda Olivares-Cunanan that ran for 25 continuous years in the op-ed page of the Philippine Daily Inquirer, the newspaper that she helped put up with its multi-awarded founder, the legendary Eugenia Duran-Apostol, in December 1985, just two months before the EDSA Revolution.

Thursday, August 30, 2018

President Duterte wants to withdraw PH from Rome Statute that created the Int'l Criminal Court---sans approval of the Senate as required by the Constitution. Without Senate action, however, as Justice Carpio stresses, Duterte's move would be invalid. But what's Presidential Legal Adviser Sal Panelo saying that PH has, in fact, already withdrawn from the ICC? The Senate should summon Panelo to explain.


A new conflict is brewing which promises to pit President Duterte and his legal team headed by  Secretary Sal Panelo, and Executive Secretary Salvador Medialdea in one corner, vs. Vice President Leni Robredo, senior Associate Justice Antonio Carpio and the opposition bloc in the Senate, led by Senate Minority Leader Franklin Drilon.  

 Except for the stand of Associate Justice Carpio who is perceived to be quite independent-minded, the verbal tussle over the Philippines' membership in the International Criminal Court---between the President and his legal team vs. Vice President Leni Robredo and the Senate opposition on the other hand---will be perceived wrongly as political. 

The present controversy should be apolitical, however,  as it is rooted in the Constitution. Proof is that this issue is pending in the Supreme Court where oral arguments on the validity or non-validity of PH's intention to withdraw from the ICC was heard last Tuesday.


Remember Fatou Bensouda, the feisty Gambian special prosecutor of the International Criminal Court (ICC) who came here last Feb. 08, 2018  purportedly to start preliminary investigation on alleged human rights violations in this country, in connection with the Duterte's administration's intensified war on drugs? 

Bensouda's visit and utterances caught world attention,  provoking angry threats from President Duterte---that led to his announcement last March 17, 2018 of our country's purported withdrawal of support for the Rome Statute that created the ICC. 

But that controversy simmered down after select voices made Mr. Duterte realize that backing out of the Rome Statute would give the country a worse black eye in the international community---perhaps even affirming all the more his  brutal war vs. drugs here, that he doesn't want it investigated.  Hence, nothing further erupted in the word war between the President and Bensouda.


That truce was apparently temporary,  for Mr. Duterte was quoted in Philippine Star recently as reviving his intention to withdraw the country from commitment to the ICC.  Such withdrawal, however,  is not that simple. 

The Philippines  was signatory to the Rome Statute that established the ICC, which came into full force on July 1, 2017 in Rome, with 123 states as party to the Statute, including the  Philippines.   But just as there is a way for this country to enter into a treaty,  as expressed in the Philippine Constitution, there is  also a prescribed way to withdraw our commitment.  

Sec. 21 of Article VII on the "Executive Department" in the Constitution states that "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."


After last Tuesday's hearing of the SC on President Duterte's intention to withdraw  Philippine commitment to the ICC, Senior SC Associate Justice Antonio Carpio was quoted in Philippine Star as asserting, "The President's duty is to faithfully execute the law. You said that a treaty has the status of a law.  So the President has to faithfully execute a treaty, correct?"

Carpio stressed that inasmuch as commitment to the ICC is THE RESULT OF A TREATY,  to repeal it, Congress must also first pass a new law for such purpose. Or to put it another way,  the senior magistrate asserted to Malacanang: "YOU CANNOT OBVIOUSLY REPEAL THE TREATY YOURSELF, CORRECT?  YOU CANNOT ABROGATE IT, CORRECT? (emphasis BOC's). 

Or to still put it differently, the SC senior magistrate stressed: "If IT IS NOT THE SOLE DISCRETION OF THE PRESIDENT TO BE PART OF (A TREATY) IT'S ALSO NOT HIS SOLE DISCRETION TO WITHDRAW FROM IT." (emphasis BOC's).  

But Carpio also reminded the senators and Mr. Duterte that to repeal a treaty, "you don't need 2/3 or a majority of the members of the Senate, but only a majority of the quorum of the members." 


Vice President Leni Robredo, on the other hand, reminded Mr. Duterte that "our membership in the ICC was not a sole discretion of the President---membership was the decision of an entire body." 

VP Robredo was being pragmatic, though, as she stressed that Philippine membership in the ICC "also assures (various) peoples' protection from human rights violations in their countries, so that when the time comes that we can no longer defend ourselves (from human rights abuses) there will be other countries who share our beliefs, to protect us." 

 A group called the "Philippine Coalition for the International Criminal Court," led by the former Chair of the Commission on Human Rights (CHR), Loretta Ann Rosales, is seeking to invalidate the country's withdrawal from the ICC.

Six senators from the Opposition, led by Minority Leader Franklin Drilon, also weighed in on the controversy, stressing the role of the Senate in enforcing a treaty---or abrogating it.


Predictably, the President's men rallied to his defense. Executive Secretary Salvador Medialdia stressed that "Any time Mr. Duterte, as Chief Architect of Philippine policy, could withdraw from the ICC without consulting the Senate."

 Presidential Legal Counsel Salvador Panelo, on the other hand, made a more interesting---and thereby pertinent---assertion. He was quoted as saying that "Duterte cannot be put under the jurisdiction of the ICC for allegedly extra-judicial killings related to the administration's drug war, AS THE PHILIPPINES ALREADY WITHDREW FROM THE ROME STATUTE." 

Moreover,  Panel asserted that since the Rome Statute "did not ripen into a law because it was not published in the Official Gazette or a newspaper of general publication, thus it never had the effect of a measure."


Presidential Legal Adviser Sal Panelo's startling assertion that the Philippines already withdrew from the Rome Statute ought to be examined, IF THERE ARE SENATORS WIDE AWAKE AT THIS MOMENT.   At the very least they should summon the debonair Panelo about this declaration---which, if true, debases the CONSTITUTIONAL PREROGATIVE of the Senate to approve or withdraw support for the Rome Statute, or for any international treaty, for that matter. 

Clearly foreseeable, however,  is that Mr. Duterte's reputation abroad as one who resorts to summary justice would widen even more. Let's hope and pray that he does not act from pure whim, but as a statesman worthy of international respect. 

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