Still, gov’t must probe fairly and speedily

Last Monday, I opined that the International Criminal Court has lost its jurisdiction (or power) over the alleged “crime against humanity of murder, committed in the Philippines between Nov. 1, 2011 and March 16, 2019” due to the egregious failure of past ICC chief prosecutor Fatou Bensouda to petition for, and to be granted, authority by the Pre-Trial Chamber (PTC) of the ICC to conduct an investigation of the “Philippine situation” within one year from March 17, 2019—the date when the Philippine withdrawal from the ICC became effective.

MANY RELUCTANTLY AGREED WITH ME. In fact, I have come to my conclusion also reluctantly though inevitably. But to allay misgivings and doubts, especially of my fellow lawyers, let me now (1) provide the legal justifications for my opinion, (2) explain why equitable solutions (that, as a jurist, I often turned to) are not possible in this instance, and (3) suggest ways to satisfy the quest for justice of our people.

On item 1, under Article 127 of the Rome Statute creating and governing the ICC, a member (or technically, a “State Party”) may withdraw from ICC; the withdrawal “shall take effect one year after the date of receipt of the notification.” Unquestionably, the Philippine withdrawal from the ICC was received by “the Secretary General of the United Nations”—the official authorized by the Rome Statute to receive the withdrawal documents—on March 17, 2018. Thus, the withdrawal took effect a year later, on March 17, 2019. Nonetheless, Article 127 provides an exception—that the withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Hence, the question boils down to: When was the Philippine situation “already under consideration by the Court?” Was it in 2018 when Bensouda started her own examination, or was it in 2021—two years from the effective date of the Philippine withdrawal in 2019—when she applied for authority from the PTC to conduct a formal investigation? Otherwise stated, to quote my column last Monday, “Is the Office of the Chief Prosecutor an integral part of the ICC?” And my short answer was, and still is, “No.” To render true justice, prosecutors should be separate and distinct from independent judges.

ON ITEM 2, INTERNATIONAL AND ARBITRAL TRIBUNALS, like the ICC, use verba legis (letter of the law) strictly in interpreting and applying the treaties or statutes creating them. The Rome Statute did not give ICC judges the clear authority to interpret liberally and actively.

In comparison, our judiciary—especially our Supreme Court—is emphatically mandated by our Constitution with the duty—not just the power—to strike down “grave abuse of discretion” thereby commanding it to be “activist,” NOT “literalist.” Moreover, the Civil Code (Article 9) bars judges from declining to decide “by reason of the silence, obscurity or insufficiency of the laws.” Rather, the Code (Article 10) mandates them to decide that “(i)n case of doubt in the interpretation or application of the laws, it is presumed that the lawmaking body intended right and justice to prevail.” The Rome Statute contains no similar provisions allowing its judges to be activists. Neither does it grant them the power to innovate with “equitable solutions” for “right and justice to prevail.”

To quote the esteemed retired Justice Adolfo S. Azcuna, our justices, and judges are given the privilege “to decide ex aequo et bono—according to one’s sense of what is right and just … ” a privilege not granted to international jurists and arbitrators. Our judiciary can grant “equitable remedies … because our courts are both courts of law and equity.”

STILL, THE DRUG WAR VICTIMS SHOULD NOT BE STRANDED, per item 3. Given the ICC’s limitation in intervening in the Philippine situation—not because of any finding that the alleged “crime of humanity of murder” did not happen in the Philippine situation, but only because of the loss of its jurisdiction caused by the belated action of the former chief prosecutor—our local authorities must stand up and render “right and justice” to our people.

Indeed, our investigative and prosecutorial agencies—especially the various police forces, the Department of Justice, Office of the Ombudsman, and the Office of the Solicitor General—must probe the complaints of the alleged victims fairly and speedily. And eventually, once the investigations are concluded, and probable causes determined to exist, and charges appropriately filed, our courts must also fulfill their solemn duty to decide fairly and speedily.

Unless fair and speedy justice is rendered, the drug war will forever be a black hole in the universe of both Presidents Ferdinand Marcos Jr. and Rodrigo Duterte. And their legacies would be forever sucked by a maelstrom of suspicions, innuendoes, and diminutions, if not of unpardonable abuse, criminal neglect, and worse, of outright rebellion. My fervent prayer is for our Father in heaven to deliver us from this maelstrom. Amen.

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