Winning while losing

Posted by watchmen
August 9, 2021
Posted in OPINION

In Pangilinan vs. Cayetano, the Supreme Court dismissed the petitions filed by minority senators and two other groups that sought to invalidate the withdrawal of the Philippines from the International Criminal Court. 

Justice Marvic Leonen wrote the decision for a unanimous Court, which did not declare the withdrawal unconstitutional because the issues raised had been rendered moot and academic even before the petitions could be filed.

The Court said that it was powerless to correct the President’s actions as soon as the ICC itself had officially acknowledged the Philippines’ withdrawal in March 2018. By then the Court could no longer effect “a reversal of completed actions.”

However, while the Court could have rendered a short ruling simply dismissing the case for mootness, as it does in hundreds of other cases, it chose to render a full decision of a hundred pages discussing many topics, like how treaty-making is a shared power between the President and the Senate.

Thus, what gave the petitioners cause for celebration is that somewhere in that decision the Supreme Court declared that withdrawing from the ICC does not discharge state parties like the Philippines from the obligations it has incurred as a member.

The Court cited Article 127 (2) of the Rome Statute which provides clearly that withdrawal should not affect the state party’s duty to cooperate with the ICC in connection with criminal investigations or proceedings that were initiated before the withdrawal became effective.

The Court did not mince words. A state party withdrawing from the Rome Statute must still comply with Article 127 (2). It cannot be discharged from any criminal proceedings. Whatever process was already initiated before the ICC obliges the state party to cooperate.

Consequently, according to the Court, until the withdrawal took effect in March 2019, the Philippines was committed to meet its obligations under the Rome Statute.

The highest court of the land was careful to point out that liability for the alleged summary killings and other atrocities in the course of the war on drugs is not being negated or ignored in its decision. “The Philippines remained covered and bound by the Rome Statute until March 17, 2019.”

This means that the chief engineers of Oplan Double Barrel and other iterations of the war on drugs were unable to secure protection from the Supreme Court. Criminal acts between 2016 and 2019 may still be investigated and prosecuted in the international arena.

Such a confounding parting shot from former chief justice Diosdado Peralta who signed his assent to the decision ten days before his early retirement this year.

To recall, ICC Prosecutor Fatou Bensouda concluded her preliminary examination and filed a formal request for investigation with the pre-trial chamber just this June. That formal investigation might commence in the next few months.

Presidential Spokesman Harry Roque continues to deny reality. He said that the President will continue to refuse cooperation with any investigation that may be authorized by the ICC in the remaining months that he stays in power.

Roque said the portions of the decision that we quoted are mere obiter dicta, or incidental statements that leave no binding precedent. He said that an obiter dictum cannot be considered jurisprudence or “case law.”

If we are to believe Roque, then ninety pages or so of that decision are wasted ink since they are not germane to the issue of mootness.

The reality is that while the current administration will resist the ICC investigation with all the powers in its command, the next President will have Pangilinan vs. Cayetano as authority or compelling reason to cooperate in the prosecution of those who may have committed crimes against humanity in the government’s conduct of the war on drugs./WDJ

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