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De Lima disqualified as counsel in ICC case

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“The opposition senators
obviously want to give De Lima
the publicity she badly needs
to get her back in the mainstream of the voters’ political consciousness.”

Many senators should go back to law school. One of them is Senator Leila de Lima, who is currently detained for corrupt practices attributed to her when she was Justice Secretary of ex-President Benigno Aquino III.

Last month, President Rodrigo Duterte announced that the Philippines is pulling out of the Rome Statute, the treaty that created the International Criminal Court (ICC). Duterte said that the ICC has gone beyond its jurisdiction and is meddling in the internal affairs of the country.

Senator Antonio Trillanes IV, whose public commentaries indicate his inability to understand Constitutional Law, criticized Duterte’s decision and branded it illegal. Trillanes cited Section 21, Article VII of the Constitution, which provides that for a treaty to be valid and binding on the nation, it must have the concurrence of at least two-thirds of all the members of the Senate. He then concludes that if Senate concurrence is needed for the Philippines to enter into a treaty, the concurrence of the Senate is also needed before the country can validly withdraw from a treaty.

As discussed in an essay under this column two weeks ago, the Trillanes theory is untenable.

For starters, the Constitution has no provision requiring Senate concurrence when the Philippines withdraws from a treaty.

Since entering into a treaty creates onerous, binding obligations on the part of the Philippines, the Constitution saw it fit to require Senate concurrence when the president enters into a treaty.

On the other hand, since withdrawal from a treaty does not create new burdens for the country, logic dictates that the Senate need not concur in the withdrawal. That is why the Constitution does not explicitly require Senate concurrence when the country wants out of a treaty.

Finally, for a power to be validly exercised by the Senate, that power must be established by the Constitution. It cannot be assumed. Evidently, the power invoked by Trillanes for the Senate is legally inexistent because it has no constitutional foundation.

Surprisingly, a few senators including Franklin Drilon, Francis Pangilinan and Leila de Lima share Trillanes’ mistaken view, not because Trillanes is right, but because of partisan political considerations. These senators are from the moribund Liberal Party, which abused power during the administration of President Aquino III. For them, everything President Duterte does is wrong. That is why they filed a petition in the Supreme Court to challenge the validity of the withdrawal from the Rome Statute for the same reasons cited by Trillanes.

The senators told the Supreme Court that they want De Lima to represent them in the upcoming oral arguments relating to their petition in view of her supposed expertise in International Law.

Although De Lima has consented to be the opposition group’s legal counsel in their case in the Supreme Court, there is a legal obstacle in their way. Under Section 14, Article VI of the Constitution, a senator is not allowed to personally appear as counsel before any court of justice. This constitutional provision is plenary enough, and allows no exceptions.

De Lima, however, argues that the constitutional prohibition cited above “applies only to lawmakers acting as lawyers for a particular case.” Where De Lima got that theory, she does not explain.

If De Lima were to represent the senators in the ICC case in the Supreme Court, she remains a “lawmaker acting as a lawyer for a particular case” within the purview of her own excuse. In fact, De Lima remains a senator who cannot appear before the Supreme Court precisely because she is a senator.

Perhaps if De Lima were the sole petitioner in the ICC case, then she can probably represent herself. That argument, however, is specious because that still means she, as a senator, will be appearing before a court of law. At any rate, the fact that there are petitioners other than De Lima in the ICC case throws out this potential exception to the general rule.

Another problem is that De Lima is currently detained and is not allowed by law to post bail. Only in the most exceptional of reasons will De Lima be allowed by the Supreme Court to temporarily step out of detention. Appearing before the Supreme Court to orally argue a case which has nothing to do with her detention does not appear to be a valid reason to warrant that kind of exceptional treatment De Lima seeks from the Supreme Court.

De Lima’s position is weak because there are other lawyers who can argue the case in her stead. Lawyers employed by the opposition senators can argue the case for their superiors.

The senators can also hire, at their own personal expense, a private lawyer. Maybe ex-Chief Justice Maria Lourdes Sereno, a known ally of the opposition, can take the case.

It is also doubtful if De Lima is the only lawyer who can competently argue the ICC case in the Supreme Court. Her known expertise is Election Law, not International Law. By insisting that De Lima be their legal counsel to argue the ICC case despite her lack of specialized competence in the field of International Law, the opposition senators obviously want to give De Lima the publicity she badly needs to get her back in the mainstream of the voters’ political consciousness.

Accommodating De Lima is a patent violation of the Constitution. It should not be allowed.

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