Are there limits to the presidential discretion of Duterte?



The issue that you submit to this court forces this Court to decide between the checks and balances and the powers of the President & # 39 ;, says Jardeleza during plea.

Published at 20:28 PM, August 28, 2018

Updated at 8:24 pm, August 28, 2018

ICC ORAL ARGUMENTS. The Supreme Court, chaired by the newly appointed chief judge Teresita Leonardo De Castro, pleaded on 28 August 2018 in her oral remarks on the withdrawal of the Philippines from the International Criminal Court. Photo by Ben Nabong / Rappler

ICC ORAL ARGUMENTS. The Supreme Court, chaired by the newly appointed chief judge Teresita Leonardo De Castro, pleaded on 28 August 2018 in her oral remarks on the withdrawal of the Philippines from the International Criminal Court. Photo by Ben Nabong / Rappler

MANILA, PHILIPPINES – The issue of the Philippines' withdrawal from the International Criminal Court (ICC) makes a distinction between the power of Rodrigo Duterte as president and the task of the two other government departments as control and balance.

This was the dominant discussion on Tuesday, August 28, when the Supreme Court (SC) held its first day of oral arguments on petitions to refute the unilateral withdrawal of Duterte from the ICC.

Applicants consisting of opposition members and the Philippine coalition for the ICC (PCICC) argued that Duterte needed the concurrence of the Senate to withdraw the Philippines from the ICC. The ICC was established by the Rome Statute, a treaty ratified by the Philippines in 2011.

Malacañang said that Duterte & # 39; s only margin of discretion is to withdraw from the ICC as the main architect of foreign policy.

The Constitution itself stands at the heart of this debate. Section 21, Article VII of the Constitution says: "No convention or international agreement is valid and effective unless at least two-thirds of all members of the Senate agree."

The provision, however, only discusses the accession to a treaty, but is silent about withdrawal.

Associate Justice Francis Jardeleza said that the lack of a textual basis is not only the problem of the petitioners, but also of Malacañang, since the Constitution does not explicitly state that the President can withdraw from a treaty only.

"That's why we have a difficult question," Jardeleza told PCICC board member Romel Bagares.

Jardeleza added: "That is where the lines are drawn, in essence the problem you are presenting to this Court forces the Court to make a decision between checks and balances and the powers of the president."

No textual basis?

For several judges, because there is no textual basis, there is no basis for saying that the unilateral withdrawal of Duterte is a violation.

"If there is no standing legal interpretation as to whether the President should obtain the Senate coalition before withdrawing from a treaty and there is no factual constitution in the Constitution governing the withdrawal of treaties, how can you seriously abuse it? of a part of the president when he submitted a withdrawal notice? "Associate Justice Estela Perlas asked Bernabe about Bagares.

Bagares said that the serious misuse of discretion comes from Duterte's other justifications for withdrawal that are not true. (READ: Still playing the cards? Politics of ICC oral arguments)

For example, Bagares said that it is wrong for Duterte to say that the non-publication of the Rome Statute is the basis for declaring the entire treaty invalid, because "as the respondents themselves admit, the core elements of the Rome Statute are again published on International Humanitarian Law. " (FULL TEXT: Duterte's statement about the withdrawal of Int'l Criminal Court)

Associate Justice Jose Reyes Jr. also made this point when he interjected Bagares.

In addition to his earlier reply, Bagares said that there was "irrationality" in Duterte's reasoning that the ICC violated the principle of complementarity when the prosecutor launched an initial investigation into alleged killings in the war on drugs.

The principle of complementarity states that the ICC is not competent if the Philippine legal system is able and willing to investigate the murders, Malacañang claims that it is.

For Bagares, the complementarity rule has not been violated because the ICC prosecutor is only at the level of the preliminary examinations. At this stage, she must determine whether the Philippine system is capable and willing to investigate.

"Then just look for remedies at our local courts, you do not need the Rome Statute," Reyes said to Bagares.

Bagares replied: "Complementarity requires that there is a third party, that we carry out our duties."

LISTEN to the proceedings before the Supreme Court. – Rappler.com


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