Malacañang on Tuesday defended before the Supreme Court the constitutionality of President Rodrigo Duterte’s decision to withdraw the country’s membership from the International Criminal Court.
During the oral argument before the Supreme Court, the Office of the President through Solicitor General Jose Calida urged the SC to dismiss the consolidated petitions filed by six opposition senators and Philippine Coalition for the International Criminal Court led by former Commission on Human Rights chairman Loretta Rosales.
Calida cited substantive and procedural grounds in seeking the dismissal of the petitions.
According to Calida, the withdrawal from ICC was within the power of the President and did not violate the 1987 Constitution.
The chief state lawyer disputed the main argument of petitioners that the Palace violated Section 21, Article VII of the Constitution which requires concurrence of the Senate in international treaties. The said provision specifically states that “entering into treaty or international agreement requires participation of Congress, that is, through concurrence of at least two-thirds of all the members of the Senate.”
Calida pointed out that such provision and constitutional requirement applies only in ratification of new treaties and does not apply to withdrawal from treaties.
“This provision requires the concurrence of at least two-thirds of all members of the Senate to make a treaty or international agreement valid and effective, but not in the event of withdrawal from a treaty. The petitioners cannot read into the provision what is not there. There is no requirement for senate concurrence in withdrawal from treaty,” Calida argued.
The Solicitor General also assailed the petitions for citing rulings of South African and United Kingdom Supreme Courts on similar cases, which he said are inapplicable in Philippine jurisprudence.
Calida said that the move of the Duterte administration to withdraw from ICC membership under the Rome Statute was justified by the preliminary examination by the ICC on alleged extrajudicial killings in the country despite “existing and functioning mechanisms to investigate and prosecute cases of extrajudicial killings.”
As to procedural grounds, the solicitor general argued that the SC cannot exercise its power of judicial review over the ICC withdrawal which is a political decision of the executive branch.
“Under the doctrine of separation of powers that affords due respect for co-equal and coordinate branches of government, the Court must restrain itself from intruding into policy matters and allow a wide degree of discretion to the president in determining foreign policy,” he said.
Calida also asserted that petitioners lack legal standing of opposition senators Kiko Pangilinan, Franklin Drilon, Leila de Lima, Bam Aquino, Antonio Trillanes IV and Risa Hontiveros in seeking relief from the Supreme Court due to the lack of official stance of the Senate as a collegial body due to divided sentiment of senators on the issue.
He cited a Senate resolution which sought to invoke Senate’s concurrence to the withdrawal, but was not passed and has actually been shelved.
Calida also said that the ICC has officially accepted the Philippine government’s withdrawal that will take effect on March 15, 2019 and this is already beyond the jurisdiction of the High Court.
During interpellation, Associate Justice Marvic Leonen agreed with most points raised by Calida. He said the Rome Statute actually allows withdrawal by a state from the treaty.
“Article 121 of Rome statues allows the state to withdraw. Withdrawal is not really a strange thing. In fact, it is discretionary on the state,” he stressed.
The magistrate also sided with Calida that the SC has no jurisdiction over the acceptance or depository of the Philippine withdrawal by the United Nations secretary general.
Leonen added that the judiciary should be cautious in interpreting the Constitution when it involves actions by political branches, particularly the executive and legislative.
Senior Associate Justice Antonio Carpio raised the possibility of losing a legal defense against China’s incursions in disputed areas in the South China Sea due to the country’s withdrawal from ICC.
“We are giving up a strong deterrent against China’s invasion in the West Philippine Sea,” he argued, ordering Calida to address this point in his memorandum.
After the three-part oral arguments, the High Court directed parties to submit their memoranda within 30 days before it rules on the case.
Meanwhile, a panel in the House of Representatives has recommended the filing of charges against police officers involved in the secret detention cell found at the Manila Police District Station 1 headquarters, and in the violent dispersal of protesters in front of the US Embassy in 2016.
The House Committee on Human Rights, chaired by Zambales Rep. Cheryl Deloso-Montalla, approved the draft committee report which said charges should be filed against the erring policemen involved in the two incidents.
The draft committee report said the fact that the detention cell in the Drug Enforcement Unit room of the Raxabago Police Station was hidden behind a book shelf proved that it was a “secret” facility.
In April 2017, Commission on Human Rights officials chanced upon the cell during a surprise inspection. The CHR officials found 11 persons, including women, locked up inside the cell.
When interviewed by the rights officials, the detainees claimed the policemen were demanding P40,000 to P200,000 from each of them in exchange for their freedom. The detainees also claimed they were made to confess to their “crimes” by the policemen who tortured them.
The House committee found that the circumstances of the detainees inside the secret detention cell were “beyond humane” and do not meet the standards of the United Nations Standard Minimum Rules for the Treatment of Prisoners.
The committee also recommended a review of the current PNP Operational Procedures, especially on the documentation of arrested suspects.
