Barry Gutierrez saves ICC withdrawal case

If the International Criminal Court (ICC) withdrawal hearings on Aug. 28 and Sept. 4 were “Infinity War,” Centerlaw veterans Romel Bagares and Gilbert Andres were Captain America and Black Panther, fighting on after teammate Ray Paolo Santiago completely surrendered to Justice Marvic Leonen’s Thanos-like opening punch.

Former Akbayan Rep. Barry Gutierrez was Thor, arriving in the nick of time with bolts of lightning to even the odds.

This is not a human rights case. It is a highly technical, sleep-inducing structure-of-government case about who authorizes termination of a treaty, whether ICC, military defense or double tax.

The president must sign a treaty, then two-thirds of the Senate must concur.

The Avengers argue that Senate concurrence is necessarily required to terminate. A president should not be able to single-handedly terminate the ICC treaty, subjected to 11 years of political debate. If a new president could after an election, it would undermine the Senate as a check-and-balance institution.

The rebuttal is, if the Constitution is silent, we should not infer new powers for the Senate.

Detained Sen. Leila de Lima could not argue for petitioning senators. They drafted Gutierrez only after the first hearing, frustratingly leaving Thor out of half the movie.

Leonen pounced on this. He spent the first belabored hour asking Santiago whether his clients (cause-oriented groups, not senators) could prove “direct injury.”

This is a standard freshman midterm question.

Direct injury must be shown in a constitutional case. Senators could, since they were given no chance to vote on the ICC withdrawal.

As an exception, ordinary citizens may question lack of authority as “public right.” In the 2003 Francisco case, citizens blocked Chief Justice Hilario Davide Jr.’s impeachment when Davide refused to sue in his own court.

Astoundingly, Santiago repeatedly but unqualifiedly conceded there was no direct injury. He then reframed the issue as a loss of citizens’ ICC remedies, not the narrow question of who authorizes treaty termination.

Santiago went so far out of bounds that he argued to Justice Andres Reyes that the United States, Russia and China must
join the ICC.

Leonen devastatingly asked if he compels the Supreme Court to uphold his politics. When Santiago backpedaled, Leonen accused him of changing theories midway.

Sympathetic justices spoke as the experienced Bagares and Andres held their ground.

Senior Associate Justice Antonio Carpio argued that a treaty has a law’s status, and the president alone may not repeal laws. Justice Francis Jardeleza posited that the loss of ICC remedies amounts to a loss of the constitutional right to liberty. Justice Alfredo Caguioa argued that this loss amounts to direct injury for any citizen (the public right exception).

Bagares impressively rode Jardeleza’s US Youngstown Steel vs Curtiss-Wright framework. Caguioa commended him as petitioner in the 2005 Pimentel Jr. case to compel ICC ratification.

Gutierrez opened strong in the second hearing, discarding Santiago’s tangents. His argument was that if a mere executive agreement cannot amend a treaty, surely a president cannot terminate one alone.

Leonen pounded on procedure for half the hearing, with Justice Noel Tijam. They argued that the Senate never formally adopted a resolution asserting a need to concur, even if 14 out of 23 senators signed.

This dangerously alluded to the US Goldwater case, where one justice argued to dismiss because Congress as a body never officially opposed a termination. Gutierrez countered with Philippine cases where the senators’ right to sue is individual.

Jardeleza added that we do not follow US tolerance of unilateral termination. More recent concurrences now state a need to concur in terminations.

Will the Avengers fall before Leonen? Despite other receptive justices, he did cosmic damage, outlining how to dismiss purely on procedure. Leonen would even cut off Gutierrez and Bagares when they replied beyond his narrow, leading questions.

The show resumes on Oct. 9.

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