‘Obiter dictum’: Palace unfazed by SC view on ICC probe

Presidential spokesperson Harry Roque. FILE PHOTO

President Duterte will still not cooperate with any investigation that the International Criminal Court (ICC) may launch into the thousands of deaths in his war on drugs, despite a Supreme Court ruling that states that he cannot invoke the Philippines’ withdrawal from the Rome Statute to evade a probe.

Presidential spokesperson Harry Roque on Thursday said the high court’s ruling was just an “obiter dictum,” or an incidental statement, on the main issue in the case, which was whether the Senate’s consent or concurrence was needed before Mr. Duterte ordered the Philippines’ withdrawal from the treaty that created the ICC in March 2018.

Not the main ruling

An obiter dictum cannot be considered jurisprudence or case law, said Roque.

“It is on the side, it is not on the merits, it is not the main ruling of the court, and we are not, of course, in any way concerned about that obiter,” Roque said at a press briefing.

Besides, he said, the President would not cooperate with the ICC investigation and could not be forced to do so.

“Unfortunately, the lack of enforcement mechanism cannot compel the Philippines to cooperate when the President has clearly said we will not do so,” Roque said.

Not to be ignored

Edre Olalia, president of the National Union of Peoples’ Lawyers, said whether the Supreme Court’s statements were obiter dictum or not was “debatable,” but these cannot be ignored.

“Politically, it’s very weighty, even morally, because it’s a full court, unanimous decision,” Olalia said in a phone interview.

The statements send a “very clear and loud message” from the highest court of the land that the Philippines as a state party at that time was obliged to cooperate with the ICC probe, said Olalia.

And even if there was no command from the Supreme Court in its decision, Olalia believes the tribunal was telegraphing a message to the public that “it would not stop a separate process of the ICC.”

Lawyer and former lawmaker Neri Colmenares disagreed with Roque’s interpretation of the court’s ruling as an obiter dictum.

“The SC (Supreme Court) was referring to Article 127 of the Rome Statute which the Philippines agreed to when it signed the treaty. So, the Philippines is bound by it even without any SC decision,” Colmenares said in a text message.

Article 127 provides that the state shall not be discharged, by reason of its withdrawal, from its obligations, arising from the statute while it was a party to it. The withdrawal shall not affect any cooperation with the ICC in connection with criminal investigations and proceedings in which the withdrawing state had a duty to cooperate and which were started before the withdrawal took effect, it further states.

Rody has ‘leeway’

The Supreme Court ruled to dismiss the petitions filed by opposition senators led by Sen. Francis Pangilinan and two other groups for being moot.

It said it had no authority to invalidate the Philippines’ withdrawal from the treaty since it was already accepted and acknowledged by the United Nations, and that the government had met the requisites in annulling the agreement.

“By ruling that it is moot, the court virtually said the concurrence of the Senate was not needed,” Roque said.

He also cited the court’s statement that the chief executive has “much leeway” in withdrawing from an agreement that he considers to have run afoul of prior existing law or the constitution.

“This is a recognition that as chief architect of foreign policy, the President’s options when it comes to treaties that had been signed cannot be limited,” he said.

Although it dismissed the petitions, the Supreme Court also said the President’s prerogative to unilaterally set aside an international agreement was “not absolute.”

“The President had no sole authority and the treaty negotiations were premised not only upon his or her own diplomatic powers, but on the specific investiture made by Congress,” it said.

“In sum, at no point and under no circumstances does the President enjoy unbridled authority to withdraw from treaties or international agreements,” it declared.

Mr. Duterte announced the country’s withdrawal from the Rome Statute a month after then ICC prosecutor Fatou Bensouda said she would begin her preliminary examination of a complaint accusing the Philippine President of crimes against humanity in connection with his drug war.

The withdrawal took effect on March 17, 2019, which means the acts of the President prior to this date were still within ICC jurisdiction.

Right direction

Pangilinan said he and the other petitioners were considering filing a motion for reconsideration “at the proper time.”

But he, along with Risa Hontiveros and Leila De Lima, who were among those who filed the petition, welcomed the Supreme Court’s declaration that the presidential power to abrogate treaties was not absolute.

Pangilinan said that the court’s statement that the Philippine government cannot be released from its obligation to abide by the ICC processes was “a step in the right direction toward attaining government accountability and substantial justice.”

Hontiveros said some rights violators in the country were “not off the hook.”

“They have nothing to celebrate. Sooner or later, they will have to face justice for the heinous acts they have committed against the Filipino people,” she said.

In a statement, De Lima asked what could have been Mr. Duterte’s motivation in withdrawing from the ICC “other than to evade prosecution of the looming charges that may be lodged against him for his administration’s policy to wage killings” in his war on drugs.”

Locsin sees ‘progress’

But Foreign Secretary Teodoro Locsin Jr. said the Duterte administration was “making real progress in human rights” while protecting the country from “the worst of scourges: drug trafficking that takes over states as in Central America; and drug addiction that destroys its willing victims.”

According to Locsin, broadening cooperation and alliances are paying off, citing in particular the three-year United Nations Joint Programme (UNJP) to strengthen the Philippines’ capacity to investigate human rights violations in the country.

The UNJP was formally signed Thursday afternoon, according to Justice Secretary Menardo Guevarra.

—WITH REPORTS FROM MELVIN GASCON AND TINA G. SANTOS INQ