Nene Pimentel and ICC

“As a matter of conflict of law, where this issue would be elevated for judicial review, the Philippine Supreme Court would inevitably uphold our Constitution over the Rome Statute.

Condolences to the Pimentel family for the demise of the late Senate President Aquilino “Nene” Pimentel.

I knew the late senator personally. He was my candidate for vice president when he ran in tandem with the late Senate President Jovito Salonga in 1992. As a young lawyer then, I did not mind sleeping on pavements for lack of funds while on the campaign trail. Salonga and Pimentel will always represent my brand of politics: nationalist, pro-people, completely honest and with acknowledged competence to lead.

He was also a client, in the case of Pimentel versus Executive Secretary. Here, we sought to transmit the Rome Statute of the International Criminal Court, which was signed by the then president, but which the administration of Gloria Macapagal-Arroyo did not submit to the Senate for the latter’s concurrence. We argued that since the International Criminal Court merely restated customary norms of International Law criminalizing war crimes and the most serious crime against the international community, the transmittal of the signed treaty to the Senate for the latter’s concurrence was ministerial. We also invoked a Ramos-issued executive order detailing the steps in treaty-making, which said that the President “shall,” meaning it is mandatory, to transmit to the Senate all treaties that it had signed. We argued that the Executive should simply not sign a treaty if it does not want it to be binding on the country. Under the Vienna Convention on the Law of Treaties, signing a treaty, where concurrence is required, does not have any binding effect on a state.

Almost 10 years later, I would agree with President Duterte’s decision to withdraw our country’s membership from the International Criminal Court. This was probably the saddest decision that I have made given that I was literally at the forefront of the lobby for our country to be a member of the Court. Nay, I was at the forefront of civil society’s campaign for universal ratification of the Rome Statute in Asia.

Why did I concur with the President? For the simple reason that when the Court’s Prosecutor publicly announced that she was conducting a preliminary examination on the Trillanes et. al. communications, erroneously referred by the media as a “complaint,” she gave the impression that her office was taking cognizance of a complaint against PRRD in utter disregard of the very reason why we opted to become a member of the Court.

Complementarity is the principle that the ICC will not exercise jurisdiction over any case unless the domestic courts have proven to be unwilling or unable to exercise jurisdiction. There is inability where the courts simply are not functioning as in the case of Sudan. There is unwillingness when courts will not act because of an immunity statute that vests a person with impunity from criminal prosecution.

Courts in the Philippines are respected for being among the most independent and competent tribunals on earth. Judges in the Philippines literally tell presidents what they can and cannot do. Philippine courts are also willing to take cognizance of cases involving international crimes. We have a domestic statute, the IHL Law, which penalizes almost the exact same crimes as the ICC does. Further while they are immune from suits during their tenure of office, our recent history has proved that at least two presidents were jailed immediately after their terms. Clearly, there is no unwillingness or inability in our courts.

There is merit too in PRRD’s contention that being penal in nature, the Rome Statute of the ICC is not effective in the Philippines since it was not published in the Official Gazette. Publication as a requirement of due process was ruled upon in the case of Tañada vs Executive Secretary, where the Supreme Court ruled that all unpublished presidential decrees issued during martial law were null and void ab initio. While a country may not invoke its domestic laws as a basis for evading its treaty obligations, the functioning of the ICC nonetheless dictates that all aspects of the court’s jurisdiction, particularly insofar as acquiring jurisdiction over the person of the accused, should be the subject of cooperation by member states. In other words, in case of a case filed against PRRD in the ICC, remote as it may be, it is still the PNP that will serve the warrant of arrest and the Department of Justice that will gather the evidence against him. Both the PNP and the DoJ could not cooperate if the Rome Statute is constitutionally infirmed under Philippine law. As a matter of conflict of law, where this issue would be elevated for judicial review, the Philippine Supreme Court would inevitably uphold our Constitution over the Rome Statute.

The ICC Prosecutor should have been more circumspect in her declarations. While the Trillanes and Sabio communications are not yet complaints, since the preliminary examination before the ICC is not yet a formal stage in the ICC, she should have known that her public declarations would give credence somehow to political assassination.

The ICC lost its staunchest ally in the campaign for universal ratification of the Rome Statute in Asia when we withdrew from the Court. It can only point to one of its own, its Prosecutor, for this sad development.