By Atty. Julius Gregory B. Delgado
PANGILINAN VS. CAYETANO, G.R. NO. 238875 (MARCH 16, 2021): WITHDRAWAL FROM ROME STATUTE DOES NOT ABSOLVE STATE ACTORS FROM LIABILITY CONCERNING THEIR ACTS PRIOR TO EFFECTIVITY OF WITHDRAWAL AND FROM OTHER DOMESTIC STATUTES AND INTERNATIONAL TREATIES
The instant Consolidated Petitions were filed by then sitting Senators, Non-Governmental Organizations (NGOs) and Integrated Bar of the Philippines questioning the withdrawal of then President Rodrigo Roa Duterte from Rome Statute creating the International Criminal Court. The Supreme Court rendered the petitions moot because the petitioners Senators failed to assert their prerogative to require their concurrence to the withdrawal. When the petitions were filed, Resolution No. 249, which seeks to express the chamber’s position on the need for concurrence, has yet to be voted. Hence, the Court held that there is no justiciable controversy as the petitioners Senators acknowledged that their action is needed before coming to the courts. Besides, the Supreme Court held that the withdrawal was already effective since the Secretary General of the United Nations received the communication of the Philippine Government on March 17, 2018, which is what the Rome Statute or the treaty requires to withdraw.
Nonetheless, the Supreme Court held that this will not excuse State Actors who are being accused of committing punishable acts under the Rome Statute prior to the Philippine Government’s withdrawal. The Court held: “Further, the International Criminal Court retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date.”
Moreover, the Philippine Government passed Republic Act No. 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. The Court held that a statute enjoys primacy over a treaty. It is passed by both the House of Representatives and the Senate and is ultimately signed into law by the President. In contrast, a treaty is negotiated by the President, and legislative participation is limited to Senate concurrence. Ergo, there is greater participation by the sovereign’s democratically elected representatives in the enactment of statutes.
In the case of the Situation in the Philippines concerning the supposed Extra-Judicial Killings in connection with the War on Drugs, the acts pertained to the charges may have happened before the efficacy of the withdrawal or before March 17, 2019. Hence, those State Actors may still be well within the ambit of jurisdiction of the International Criminal Court and may still be held liable if found guilty after trial by the ICC. The question remains is when the Arrest Order is issued, will the Philippine Government cooperate? It may be argued that under Pangilinan vs. Cayetano, supra, Philippine Government is still bound by international treaties and conventions and our own local statute, specifically Republic Act No. 9851, may require the Executive to cooperate with the ICC.