SPEAKER Martin Romualdez yesterday dismissed Sen. Ronald dela Rosa’s statement questioning the timing of the hearings being conducted by the House of Representative on resolutions urging the government to cooperate with the International Criminal Court (ICC) probe on former President Rodrigo Duterte’s war on drugs.
Romualdez said there are no hidden motives in the House action, pointing out that the House joint committees on justice and on human rights are merely acting on the “grievances” of some lawmakers.
“Sense of the House naman ‘yan e. ‘Yan ang hinaing ng ibang mga kongresista (It’s just the sense of the House. That’s the grievances of some congressmen),” he told reporters in Talisay City, Cebu where the Speaker and Cebu Gov. Gwen Garcia led the ceremonial selling of P20 per kilogram of rice during the launch of the “Sugbo Merkadong Barato” at the city hall.
The Speaker said the joint hearings on the ICC resolutions will give resource persons a chance to be heard before the panel members vote.
“Magkakaroon tayo ng tamang panahon o hearings kung saan nila ilalabas ‘yung mga arguments for and against po (There will be a time or hearings where arguments for or against the resolutions will be heard),” Romualdez said.
The two panels last week started tackling House Resolution No. 1393 filed by the militant Makabayan bloc and HR No. 1477 authored by Manila Rep. Bienvenido Abante, who chairs the human rights panel, and Rep. Ramon Rodrigo Gutierrez (PL, 1-Rider).
The House joint committees, however, had to defer the hearings pending the referral of Albay Rep. Edcel Lagman’s House Resolution No. 1482 which seeks to verify if the body has jurisdiction over the country since the Duterte administration withdrew from the ICC’s Rome Statute on March 17, 2018.
He reminded the joint panels that the jurisdiction of the ICC over covered crimes committed in the Philippines took effect on November 1, 2011 after the Philippines acceded to the Rome Statute, and the withdrawal became effective only a year after its filing, specifically on March 17, 2019.
Consequently, Lagman said the jurisdiction of the ICC on covered crimes committed in the Philippines spans the period from November 1, 2011 to March 16, 2019.
Asked if she thinks that the timing of the hearings on the House resolutions was done to silence the Dutertes, especially her father, as mentioned by Dela Rosa, Vice President Sara Duterte said: “Iwan na lang namin ‘yan sa mga tao na i-analyze (Let’s just leave it for the public to analyze). I do not want to speculate on the motives of the House of Representatives.”
The younger Duterte refused to comment on the senator’s observation, saying she has not spoken with the lawmaker.
“Pero ‘yung sa amin lang, sa side ko, we will just post parang legal points doon sa ICC na issue (But for us, from my side, we will just post some legal points on the ICC issue),” she said, referring to her stand that the government should not cooperate with the ICC’s probe.
The Vice President has already said that while she respects the decision of the President to study the possibility of the country rejoining the ICC, the OVP will “continue to reach out to the DOJ (Department of Justice) regarding our position on this matter and we will lay down the legal basis of our position with the DOJ.”
Rep. France Castro (PL, ACT), a member of the militant Makabayan bloc, asked the Vice President to clarify if she meant that the Supreme Court was wrong when it said that the Philippines is obliged to cooperate with the ICC.
SENATE RESOLUTION
At the Senate, deputy minority leader Risa Hontiveros yesterday filed a resolution echoing the House resolutions and urging the government “to finally cooperate” with the ICC probe.
Hontiveros’ Senate Resolution No. 867 asks the Executive branch to “cooperate” and “assist” the ICC, pointing out that Article 172 (2) of the Rome Statute provides that “withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior.”
“The ICC stated that it ‘retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was State party,” she said.
Hontiveros also cited a Supreme Court decision in Pangilinan v. Cayetano (G.R. Nos. 238875, 239483, and 240954 on March 16, 2021) stating that the Philippines’ withdrawal “does not undermine or diminish the International Criminal Court’s jurisdiction and power to continue a probe that it has commenced while a state was party to the Rome Statute.”
“The Court has likewise ruled that ‘it is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda in the way of such attitude, which is, moreover, at war with the principle of international morality,” she added.
Hontiveros also said that allowing the ICC to investigate the alleged human rights abuses during the years that the country was still a member of the Rome Statute is a way for the President to promote human rights in the country and the “high level of accountability for human rights violators.”
“The best way for Malacañang to show its commitment to upholding human rights is to work with the ICC in securing justice for human rights violations victims and in upgrading mechanisms of human rights protections in the Philippines,” Hontiveros said.
Sen. Imee Marcos, in a statement, said that the filing of the resolution in the Senate will invite “trouble” since the President has already made it clear “that the ICC has no jurisdiction to conduct the probe.”
In a press conference, Marcos said she sees no problem if Hontiveros’ resolution will be referred to the Committee on Foreign Relations, which she chairs, but she cannot schedule a hearing right away since there are other resolutions which have been referred to the panel.
Marcos said she shares the opinion of his brother, President Marcos Jr., that the ICC has no jurisdiction over the Philippines since the country has a working justice system, which she pointed out has benefitted former senator Leila de Lima and journalist Maria Ressa, among others.
Hontiveros said she does not take offense to the statement of her colleague.
“Lahat kami ay may sariling style ng pagsasalita. Lahat kami passionate sa kani-kaniyang advocacies at siyempre opinion sa mga isyu. So, respetuhan lang naman ang pinaiiral naming dito sa Senado. At pagdating sa kani-kaniyang resolution, handa ang bawat isa sa amin at handa ako dito sa Resolution No. 867 na gawin ang aking trabaho (We have our own style of speaking up. We are all passionate with our own advocacies and opinion on issues. So, respect prevails here in the Senate. And when it comes to the resolutions we filed, the senators are ready, and I am ready to do my job in Resolution No. 867),” she said.
Sen. Ronald dela Rosa said it was expected of Hontiveros to file the resolution but “I don’t think it will gain traction with the President’s stand not to allow the ICC to conduct their investigation in our jurisdiction.”
REJOINING THE ICC
Senate President Juan Miguel Zubiri said the decision whether or not to rejoin the ICC “is not a decision we senators make.”
“It is a decision of the President of the Republic of the Philippines being chief foreign policy maker of our country. He alone makes that decision and everything else is just noise on whether we should join or not,” Zubiri said in a message to the media.
Former Senate President Franklin Drilon said the concurrence of the Senate is not a requirement should the present administration decide to rejoin the ICC, saying the President has the legal authority to do so.
Dela Rosa on Monday said Malacañang needs the concurrence of the Senate should it decide to revive its membership to the ICC.
“In my view, the concurrence of the Senate is not necessary for the Philippines to rejoin the International Criminal Court. The Philippines can rejoin the ICC without returning to the Senate. The President can rely on the original resolution or ratification, as it remains valid and in effect,” said Drilon, who is also a former justice secretary.
He said rejoining the ICC is purely an executive decision given the Senate’s prior ratification of the treaty on August 23, 2011.
“Resolution No. 57, like any other resolution or law, remains legally binding unless specifically repealed. Its ratification has never been revoked,” Drilon said, as he cited previous executive actions, including the unilateral withdrawal from the ICC by Duterte.
He also cited the abrogation of the two-decade-old Visiting Forces Agreement in February 2020, wherein Duterte, after three suspensions, recalled the suspension and effectively reinstated the VFA.
On February 2020, Duterte unilaterally terminated the VFA but later also unilaterally reinstated it by retracting the termination letter for the VFA.
Drilon said he was one of the petitioners in Pangilinan v. Cayetano, wherein the Supreme Court said that unless there is a provision requiring Senate concurrence prior to withdrawal, the President can withdraw from a treaty.
“The Senate’s concurrence in the ratification of the Rome Statute was never withdrawn. It therefore remains valid,” he said, adding: “If withdrawal from a treaty can be made through an executive action as shown by former President Duterte, then the decision to rejoin can likewise be made through an executive action by President Marcos.”
He said Duterte’s withdrawal from the ICC sets precedent for Marcos.
“If Duterte could unilaterally withdraw from ICC, President Marcos should similarly have the authority to rejoin the ICC. The situation would have been different if former President Duterte had sought the Senate’s concurrence when the country left the ICC, as that action would have been legally binding and established a precedent,” he also said.
Castro said the Duterte administration’s decision to withdraw from the ICC was of questionable motive.
“Probably out of fear, ex-president Duterte immediately and unilaterally ordered the country’s withdrawal from the Rome Statute on March 2018, but this does not mean that the ICC has no jurisdiction over the case ‘crime against humanity’ filed against him,” she said in a statement.
Castro cited Article 127 of the Rome Statute, which states that a country’s withdrawal would only take effect after a year and that members are obligated to cooperate if there were on-going criminal investigations or proceedings before the withdrawal takes effect.
“No one is above the law. Thousands were killed by VP Duterte’s father who have not been served justice until now. What about them?” she said. “Kaya din ba ayaw makipagtulungan ni VP Duterte sa ICC ay dahil ma-uungkat ang pagkakasangkot niya sa mga EJKs tulad ng sinabi ni Arturo Lascanas sa kanyang affidavit na isinumite sa ICC? (Is one of the reasons why VP Duterte does not want the government to cooperate with the ICC is because her alleged involvement in extrajudicial killings as claimed by Arthur Lascañas in his affidavit which was submitted to the ICC will be revealed?)” she said without elaborating.
Department of Justice (DOJ) spokesman Jose Dominic Clavano said the possible return of the country to the ICC will take time considering the legal issues involved.
Clavano said the department has not changed its position that the ICC no longer has jurisdiction over the country after Manila withdrew from the Rome Statute in March 2019.
However, he said the department will study the issues raised by several lawmakers concerning the country’s possible return to the ICC.
“Kailangan po namin pag aralan ang isyu and I think sa amin sa DOJ sa ngayon ito pa rin po ang stand namin pero bukas kami sa pagbabago (We need to study the issue first, and I think, we at the DOJ is consistent with our stand but we are also open to a change in policy),” Clavano told the “Bagong Pilipinas Ngayon” forum.
Asked for a timeline on when the country may possibly return to the ICC, Clavano said it is still far-fetched as there are many legal challenges and issues to be considered.
“Malayo pa po yan. Marami pong consideration and legal challenges lalo na hindi na tayo bahagi ng ICC. We really need to study all the consequences of returning to the ICC,” he said.
Solicitor General Menardo Guevarra said that non-cooperation with the ICC in its probe against the deaths and abuses committed under the drug war of the then Duterte administration and rejoining the ICC are two different things.
Guevarra, who was a former DOJ chief from 2018 to 2022, stressed that the government has no legal duty to cooperate with the ICC in its investigation of the drug war since it can no longer exercise jurisdiction after the effectivity of the country’s withdrawal from the ICC in 2019.
Guevarra noted that the ICC prosecutor was authorized to investigate only in 2021 or two years after the country’s withdrawal.
“The House resolutions encouraging the government to cooperate, if adopted, are non-binding expression of their sentiment only,” Guevarra said.
But he acknowledged that rejoining the Court is a policy decision that will involve both the Executive and Legislative branches of the government.
“This matter needs a very serious study because many factors and competing interests need to be considered,” he said.
Earlier, Justice Secretary Jesus Crispin Remulla said he will discuss with Malacañang the call of some lawmakers to cooperate with the investigation of the ICC on the drug war deaths under the previous administration. — With Raymond Africa and Ashzel Hachero
