(1.0) Introduction
(1.1) War on Drugs
President Rodrigo Roa Duterte is the current to leader for the Philippine Republic, since 2016. He since then implemented a policy known as the 'war on drugs', which permitted 'extra-judicial' killings against perpetrators of crimes, related to drugs. This policy has no legal bearings or legitimacy and may be subjected under the purview of the International Criminal Court (ICC).
It was reported by the police that there were 8,000 deaths, which they admitted was committed by them. However, human rights groups in their estimates found that the number of casualties were higher, which was three times the statistics provided by the police (24,000 to 30,000 mortalities). The deaths were contributed by passer-by shootings by the police. The deaths of the alleged perpetrators were justified for execution, were based on the 'suspicion' of the police.
(1.2) Running for Vice-President
This could be another reason why Rodrigo is absconding prosecution by the ICC. When he runs for vice-president (VC), he would be the No. 2 person in power, while the No. 1 would then his own daughter, Sara Duterte, mayor of Davao City to compete for the Presidential post. This ensures that any action or impunity against him would be exempted. Also, his grip on power would remain, while consolidating the "Duterte Dynasty" in the Philippines.
The reason why he did not run for President again, is because the law in the Philippines prohibits another re-election to that premier post. Rodrigo's tenure would expire in 2022. He accepted the VC nomination and become a candidate, with a stamp of approval from the ruling party Partido Demokratiko Pilipino-Laks ng Bayan (PDP-Laban).
Apart from his own daughter, his longitme aide Christopher Bong Go, a senator was also nominated by the PDP-Laban party to run as a candidate in the May 2022 polls. Probably, the Dutertes would resume power, since one statistics reveal that he has an approval rating of 91%. Moreover, he is very popular with the Build-Build-Build imitative which costs USD$164.7 billion for infrastructure projects. Contesting for presidency saw Manny Pacquiao, sensational boxer in the bid as well.
(2.0) Legal Implications
(2.1) War on Drugs
(2.1.1) International Law
A decision came from a panel of judges in the International Criminal Court (ICC) to allow a formal investigation of 'crimes against humanity' against the President. The basis was based on article 15(3) of the Rome Statute (the Statute). This provision has to be read with article 15(4) of the Statute that for there to be a pre-trial chamber, there needs to be reasonable factual basis for the Prosecutor to proceed with an investigation
Article 7(1) of the Statute defines 'crimes against humanity' as "acts listed, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". One of the acts listed includes 'attack'. From here, President Rodrigo Duterte fulfilled all the requirements for him to commit 'crimes against humanity'.
Not just that, but there were may also be additional crimes against humanity of torture or other inhuman acts under articles 7(1)(f) and (k) of the Statute, which are severe beatings or other mistreatment of victims prior to the killings.
Due to this, the President attempted to abscond investigations or legal actions, by retracting the country from being a member-party to the ICC on 17th March 2018, through rescinding the Rome Statute. The Panel decided as such when his campaign on 'war on drugs' commenced between 1st November 2011 to 16th March 2019.
It is interesting to note that, despite retracting the Rome Statute in 2018, President Rodrigo may still be liable for his contemptible acts several ICC panel decisions. In the Pre-Trial Chamber of ICC-01/21, court held that ratione temporis applied between 2011 to 2019 even when the Philippines rescinded the Statute.
The Philippines ratified the Statute through article 126(1) on 1st November. They subsequently rescinded it on 17th March 2018 when a deposited written notification of withdrawal was submitted to the UN Secretary-General as under article 127 of the Statute. The withdrawal took effect on 17th March 2019.
Therefore, the court found that ICC still retains jurisdiction over the Philippines between 2011 to 2019. This is aligned with article 70 of the Vienna Convention on the Law of Treaties (the Treaty). The Treaty stipulates that, the withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.
Similar precedents could be scrutinised in the Burundi, Pre-Trial Chamber III (ICC-01/17-9-Red) which held that withdrawal from the Rome Statute does not affect the Court's exercise of jurisdiction over crimes, prior to the effective date of withdrawal. This was affirmed in Pre-Trial Chamber II, Public Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman, (ICC-02/05-01/20-302), 17 May 2021, ICC-02/05-01/20-391, para. 33.
Despite investigations allowed, it would be difficult to collect evidence and other proof. According to Attorney and former congressman Neri Colmenares, the prosecutor of ICC would have to come to the Philippines physically and most likely, the country would not allow them to enter. Hope is not lost, as digital communications, set-up with third parties could be done.
Even if indicted and a warrant issued, how would he be arrested? Though, if Rodrigo travels to a country ratifying the ICC, then that country with the commitment could arrest him.
(2.1.2) Domestic Law
The Supreme Court in the Philippines held that, congruently with the ICC decision, despite revoking the Rome Statute, ICC still retains jurisdiction of ratione loci in the country. All crimes before March 2019, instigated were still eligible for investigations. It was a unanimous 15-0 decision.
The case law would be in Senator Francis “Kiko” N. Pangilinan, et al. Vs. Alan Peter S. Cayetano, et al. G.R. No. 238875, as per Leonen, J states the following in his judgement;
"Nonetheless, the President's discretion on unilaterally withdrawing from any treaty or international agreement is not absolute.... In appropriate cases, legislative involvement is imperative. The president cannot unilaterally withdraw from a treaty if there is subsequent legislation which affirms and implements it."
Article II, Section 2 of the 1986 Constitution, which embodies the incorporation method that "adopts the generally accepted principles of international law as part of the law of the land", meaning, the Philippines legislated the Rome Statute into their country through the Republic Act No. 9851, Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
Article VII, Section 21 of the 1986 Constitution requires the concurrence by at least two-thirds of all members of the Senate for a treaty to be valid, binding, effective, and enforceable. This because, the Rome Statute was similar to a national legislation, Enactment of Congress or Republic Act. Although, there is no wording for concurring to withdraw, the power to adopt an international law also comes with the withdrawal by the Senate.
Overall, the President could not unilaterally revoke or withdraw from the Rome Statute without concurrence from two-thirds of the Senate. Thus the President is still liable and open to investigations by the ICC.
(2.2) Position for Vice-President
Since Rodrigo could not run for President again, this was expressly provided under the current Philippine 1986 Constitution. It limited him for only a single-term that lasts for only six-years. Unlike Malaysia, there is no limit for tenure in office and a Prime Minister could be elected to office as many terms as he wish, especially Tun Dr. Mahathir Mohamad who had ruled for 22 years.
According to Article VII, Section 4 of the 1986 Constitution states that, "The President and the Vice-Pfresident shall be elected by direct vote of the people for a term of six years... The President shall not be eligible for any reelection."
While the 1986 Constitution does not prohibit a former President to be a Vice-President, it is argued that it goes against the spirit and intention of the Charter. According to lawyer turned veteran politician, Franklin Drilon said that, if the President were to resign, be impeached, died or permanently incapacitated, the 1986 Constitution allows the VC to replace him.
In our scenario, let us say that if Sara Duterte suddenly resigns, then Rodrigo Duterte could replace his daughter and become President again. This would transgress the intention or purpose of the Constitution to restrict a President to only a term of six years only.
(2.3) Improvements to the 1986 Constitution
Concisely, the historical context of the Philippine Constitution traces all the way back to the 1899 Malolos Constitution. The Malolos Constitution established the Malolos Republic or the earliest Philippine sovereign-state. Unfortunately, it was short-lived because of the looming Philippine-American War after the Spaniards left the country.
Later, the 1935 Commonwealth Constitution, followed by the 1973 Constitution that dictator Ferdinand Marcos exercised for perpetual power and finally the current 1986 'Freedom' Constitution, that replaced the previous Constitution under the dictatorship and socio-economic unrest. However, there are still weaknesses in the current Constitution.
This is apparent when referring to Article XII, Section 11 of the 1986 Constitution, stipulates that, "No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens...."
"... The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines."
This has stunted development in the Philippines in all aspects of socio-economic concerns, including the infrastructure, business opportunities, internet access and swooped a flat blanket of poverty across the country. Perhaps, in this regards, the Philippines could amend the Constitution to provide some latitude for more foreign direct investments (FDI).
(3.0) Conclusion
To conclude, the President is still liable under the Rome Statute based on two simple reasons;
Firstly, the Supreme Court decision had decided that the President could not unilaterally revoke an international agreement (which is the Rome Statute), because concurrence to adopt an international law as part of the law of the land, includes withdrawal from the international law.
Secondly, even if assuming that the Rome Statute was revoked, the treaty is still applicable to acts committed while it was still enforced and prior to its revocation. Since the drug war campaign or policy was instituted prior to the effective revocation in 2019, the President would still be answerable to his acts and that investigations could be made.
On the issue of Vice-President, despite the 1986 Constitution does not expressly prohibit a former President to be VC, however it goes against the spirit of the Constitution and he may use an insidous tactic to continue his reign, if the President were to resign, the VC would replace him or her.
(4.0) References;
Pre-Trial Chamber I. ICC-01/21-12 15-09-2021 1/41 EC PT . Retrieved from, https://www.icc-cpi.int/CourtRecords/CR2021_08044.PDF
Aryeh Neier. (September, 2021) ICC Investigation of Philippines President Duterte Sends Important Signals. Retrieved from, https://www.justsecurity.org/78354/icc-investigation-of-philippines-president-duterte-sends-important-signals/
Beltran, M. (August, 2021) Duterte Vs the International Criminal Court. Can Philippine President Rodrigo Duterte be indicted for “crimes against humanity”? And if so, can he be brought to justice?. Retrieved from, https://thediplomat.com/2021/08/duterte-vs-the-international-criminal-court/
Gita-Carlos, R. (September, 2021) Duterte formally accepts nomination as PDP-Laban’s VP bet. Retrieved from, https://www.pna.gov.ph/articles/1154455
AFP. (August, 2021) Philippines’ Duterte to run for vice-president, says party. Retrieved from, https://www.malaysianow.com/out-there-now/2021/08/24/philippines-duterte-to-run-for-vice-president-says-party/
Reuters. (September, 2021) Philippines' Duterte accepts 2022 vice presidential nomination. Retrieved from, https://gulfnews.com/photos/news/philippines-sara-duterte-tops-presidential-poll-dad-rodrigo-tops-vice-presidential-poll-1.1626257880315?slide=5
Supreme Court Decision on ICC. Retrieved from, https://sc.judiciary.gov.ph/20238/
Buan, L. (July, 2021) EXPLAINER: What Supreme Court ICC ruling means for international treaties. Retrieved from, https://www.rappler.com/newsbreak/explainers/explainer-what-supreme-court-icc-ruling-means-international-treaties
Buan, L. (July, 2021) Supreme Court: Philippines obliged to cooperate with ICC. Retrieved from, https://www.rappler.com/nation/supreme-court-decision-philippine-government-cooperate-international-criminal-court
Cepeda, M. (July, 2021) Duterte running for VP ‘contravenes spirit of Constitution’ – opposition senators. Retrieved from, https://www.rappler.com/nation/elections/opposition-senators-says-duterte-running-vp-contravene-spirit-constitution
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