ICC pullout: Are there limits to Duterte’s presidential discretion?

MANILA, Philippines – The meat of the issue on the Philippines’ withdrawal from the International Criminal Court (ICC) is drawing a line between Rodrigo Duterte’s power as president, and the job of the two other branches of government as check and balance.

This was the dominant discussion on Tuesday, August 28, when the Supreme Court (SC) held its first day of oral arguments on petitions seeking to invalidate Duterte’s unilateral withdrawal from the ICC.

Petitioners composed of opposition senators and the Philippine Coalition for the ICC (PCICC) argued that Duterte needed the concurrence of the Senate to withdraw the Philippines from the ICC. The ICC was created by the Rome Statute, a treaty ratified by the Philippines in 2011.

Malacañang said it is Duterte’s lone discretion to pull out from the ICC as the chief architect of foreign policy.

Front and center of this debate is the Constitution itself. Section 21, Article VII of the Constitution says: “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.”

The provision, however, discusses only the entry into a treaty, but is silent on withdrawal.

Associate Justice Francis Jardeleza said the lack of textual basis is not only the problem of the petitioners, but of Malacañang as well, as the Constitution also does not expressly state that the president can withdraw from a treaty on his own.

"That's why we have a difficult question," Jardeleza told PCICC counsel Romel Bagares. 

Jardeleza added: “That’s where the lines are drawn, essentially the issue you are presenting to this Court forces this Court to make a decision between checks and balances and the powers of the president."

No textual basis?

For several justices, because there is no textual basis, there is also no basis to say that Duterte's unilateral withdrawal is a violation.

“If there is no standing judicial interpretation as to whether or not the President needs to obtain the Senate’s concurrence before withdrawing from a treaty, and there is no actual provision in the Constitution governing treaty withdrawal, how can you attribute grave abuse of discretion on the part of the President when he filed a notice of withdrawal?” Associate Justice Estela Perlas Bernabe asked Bagares.

Bagares said the grave abuse of discretion comes from Duterte’s other justifications for withdrawal that are not true. (READ: Playing the cards right? Politics of ICC oral arguments)

For example, Bagares said that it is false for Duterte to say that the non-publication of the Rome Statute is basis to invalidate the whole treaty because “as the respondents themselves admit, the core elements of the Rome Statute have been republished on the International Humanitarian Law.” (FULL TEXT: Duterte's statement on Int'l Criminal Court withdrawal)

Associate Justice Jose Reyes Jr also made this point when he interpellated Bagares.

In addition to his earlier answer, Bagares said there was “irrationality” in Duterte’s reasoning that the ICC violated the principle of complementarity when its Prosecutor launched preliminary examinations into alleged killings in the war on drugs.

The principle of complementarity states that the ICC will not have jurisdiction if the Philippine justice system is able and willing to investigate the killings, which Malacañang contends it is.

For Bagares, the complementarity rule has not been violated because the ICC prosecutor is at the level of preliminary examinations only. At this stage, she must determine if the Philippine system is able and willing to investigate.

"Then just seek remedies from our local courts, you don't need the Rome Statute," Reyes told Bagares.

Bagares answered: “Complementarity requires that there is a third party body, that we are doing our jobs."

LISTEN to the proceedings 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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