Is our ICC withdrawal valid?

Will the International Criminal Court (ICC) still have jurisdiction to investigate and prosecute crimes against humanity committed in the Philippines after March 17, 2019?

This is essentially what’s at stake in the case pending in the Supreme Court that questions the validity of our country’s withdrawal from the ICC. Oral arguments were heard on Tuesday.

On Nov. 1, 2011, the Philippines became a state party to the ICC. On Feb. 8, 2018, the ICC prosecutor announced that she would conduct a preliminary examination of the Philippine situation following reports of extrajudicial killings in the government’s “war on drugs” campaign.

On March 17, 2018, or just 37 days after the ICC prosecutor’s announcement, the Philippine government submitted its notice of withdrawal from the ICC. If the withdrawal is held valid by the high court, the Philippines will cease to be a party to the ICC on March 17, 2019, or one year from notice.

It is interesting to note that the Duterte administration invokes as its reason for withdrawal the alleged noncompliance with the requirement of Philippine law, because the ICC statute was not published in the Official Gazette. But Malacañang contradicts itself when it argues that the withdrawal is valid notwithstanding its noncompliance with the Philippine law requiring Senate concurrence on the move.

The paradigm embedded in our Constitution is that the requirements to do an important act are the same requirements needed to undo the same act, even if it’s not so expressly stated. A law is passed by a majority vote of Congress, and it is repealed also by a vote of Congress passing a contradictory new law. A new constitutional provision is approved through a people’s plebiscite, and it is repealed by an amendment also approved by plebiscite.

When the Constitution requires a different procedure to undo an act, the Constitution expressly spells out the dissimilar procedure to undo it. The President is installed in office through election, but may be removed through impeachment. The Supreme Court justices are appointed by the President from a Judicial and Bar Council shortlist, but they may be removed by impeachment.

The Constitution requires Senate concurrence for the President to enter into a treaty (like our ICC membership). The Constitution does not spell out a different procedure for our disengagement from a treaty. Hence, the embedded paradigm kicks in. Senate concurrence is required to give validity to a presidential action withdrawing our membership in the ICC.

During the oral arguments, one of the justices mentioned that the nonfiling of complaints by the victims’ families may be the reason there are virtually no cases pending in court despite so many killings. The comment was made because, if our country’s justice system is working to address the killings, there is really no need for the ICC to exercise its complementary jurisdiction.

However, even if our courts are functioning, the police and prosecutors (both supervised by the President) may not be performing their duties of investigation and prosecution, thus preventing cases from reaching the courts. Even if the victims’ families are not filing complaints because of fear, the police and prosecutors must perform their duties.

The reason criminal cases are titled “People of the Philippines vs (name of the accused)” is because crimes are offenses against the nation’s populace, so the police and prosecutors must investigate and file charges using scene of the crime reports, forensic evidence and witnesses’ statements other than those of the frightened families of the victims.

Even when death happens during a police operation, the police manual requires policemen to mandatorily submit their reports to the prosecutors for investigation, because there is no presumption of regularity in police killings.

Any pervasive absence of police and prosecutor efforts to perform their duties may show inability or unwillingness on the part of our government to address the killings. That gives way to the ICC to exercise complementary jurisdiction, and rightfully beyond March 17, 2019.

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