Supreme court's oral argument on ICC JURISDICTION & ACCOUNTABILITY

Added: 2026-05-24

[00:00:01]Um because you honored the R9851 is uh almost an except copy of the Rome statute and the Rome statute honor is >> you're not answering my question. You're allied in my question. My question is where in that statute so that we finish immediately go home. Okay.

[00:00:16]>> It's not there expressly.

[00:00:18]>> Not expressly. So the house and the senate did not pass the house representative of the people. The Senate elected at large passed a law which did not include portions of the Rome Statute but copied the core provisions. Correct.

[00:00:37]>> That's correct your honor.

[00:00:38]>> Yes. So when the president removed the treaty or withdrew from the treaty, did it violate a law?

[00:00:46]>> It did your honor.

[00:00:48]>> Which law?

[00:00:50]>> Many laws your honor. Um we are parties to so many con um for instance the four Geneva conventions.

[00:00:57]>> Which one? Which convention?

[00:00:58]>> The four Geneva conventions your honor.

[00:01:00]>> The Geneva conventions.

[00:01:01]>> Yes. And uh >> have we withdrawn from the Geneva conventions?

[00:01:04]>> We are not your honor. But all of these >> Have we withdrawn from protocol one of the Geneva Convention of 1949? Have we withdrawn from protocol 2 of the Geneva Convention?

[00:01:14]>> No your honor. But >> have we withdrawn from the H convention of 1907?

[00:01:19]>> No your honor.

[00:01:19]>> So what are you saying? We have also withdrawn from the Geneva Convention.

[00:01:23]Are the provisions of the Geneva Conventions already in Republic Act 9851?

[00:01:28]>> Yes, your honor.

[00:01:29]>> Did we withdraw 9851?

[00:01:31]>> Well, that that is not allowed.

[00:01:32]>> So, be careful council. Don't don't do what the law student does. You answer the question.

[00:01:38]>> We did not. Your honor, >> the question is here. We have a law passed by the House and the Senate. The House and the Senate through a law decided that only these portions of the Rome Statute will bind the Philippines.

[00:01:54]Correct.

[00:01:55]>> That's correct.

[00:01:56]>> Only by treaty did we add certain other >> That's correct. Your honor, >> with the president withdrawing from the treaty did the president violate this statute.

[00:02:09]>> Did the president withdraw from 9851?

[00:02:13]>> Qualify answer. Did the president? No.

[00:02:17]>> So he did not.

[00:02:18]>> He did not.

[00:02:19]>> Yes. So that's it. Thank you.

[00:02:23]Million Filipinos today reading the text had they wanted the inverse why did they not put it there?

[00:02:32]Uh your honor again if we look at the intent of the constitutional framers your honor they wanted a check on this >> power had they wanted it to actually bind the president in terms of withdrawal why did they not put it in section 21 or somewhere in the constitution >> I would not be able to speculate on that your honor >> perhaps because they did not intend it that way >> that would be speculative your honor >> why would it be speculative isn't yours more speculative.

[00:03:03]>> Uh, no your honor because again the >> as I read the constitution and if I were only >> excuse me.

[00:03:09]>> Yes, your honor.

[00:03:10]>> If I were only reading the constitution which was by the way were the deliberations of the concom presented to the people during the bleit?

[00:03:19]>> No your honor.

[00:03:20]>> Really? So why are we using it as a aid to interpretation?

[00:03:24]>> Uh it was not presented but >> what was presented to the people? Was it this provision? the text of the constitution.

[00:03:31]>> Yes. And it was the text of the provision that was ratified. Correct.

[00:03:34]>> Yes, sir.

[00:03:35]>> And in the text of the constitution, it does not say when the president exercising his powers of foreign policy withdraws from a treaty, it needs also Senate concurrence.

[00:03:44]>> We submit your honor that it's not. So therefore, it is possible and reasonable for this court to rule that there is no such requirement.

[00:03:54]>> It's possible for the court to rule.

[00:03:56]It's possible for this court to rule because the president's term is only 6 years.

[00:04:01]>> Yes sir.

[00:04:01]>> And that after 6 years he will have to give it to the electorate if he really wants to join again that treaty then therefore again sign the treaty and the senate to concur. Correct. Yes. Unless the senate and the house get together and pass a law. Correct. Yes. In which case they did in 9851. Correct. Yes. In order to assure the protection domestically. Correct.

[00:04:26]>> Yes, your honor.

[00:04:27]>> Yes. And therefore, the withdrawal of the treaty does not have an effect on the protections granted by our legal norms on human rights to our people.

[00:04:36]Correct?

[00:04:37]Uh again your honor the withdrawal from the Rome statute on the ICC your honor has effectively or will effectively withdraw further >> ask foreigners to rule on crimes more than the Supreme Court and our lower courts.

[00:04:55]>> Your honor if there is an inability to bring cases uh before the courts >> is there an inability we go around in circles. What is the situation now? Is there an inability of our trial courts?

[00:05:09]You tell us because we are here in the Supreme Court. The courts are open. Is there inability of our trial courts to attend to human rights cases? There is no inability.

[00:05:19]>> No inability. Is there an unwillingness of our courts to attend to human rights cases? Not with the courts.

[00:05:25]>> Not with the courts. So again, what is the right that was violated?

[00:05:31]What is the prerogative that was violated?

[00:05:35]As a matter of fact, there is reverse complimentarity in 9851. Is that not correct? Yes, wrong. Where is it found?

[00:05:47]Chapter 8, section 17.

[00:05:52]Correct?

[00:05:53]>> Yes, sir.

[00:05:53]>> In the interest of justice, the relevant Philippine authorities may dispense with investigation or prosecution and give it to another court or an international tribunal. Correct. That's correct. your honor.

[00:06:04]>> So, isn't this unconstitutional by itself?

[00:06:07]>> Uh, versus mobile. Whenever a trial court already has jurisdiction, it maintains that jurisdiction. Here it appears to say Filipino court. An American serviceman is caught committing a crime. If there is a court in the United States already seized of that, our Philippine courts must give way according to this.

[00:06:30]Correct. That's correct. Reverse complimentarity. Correct. Yes, your honor. So, in other words, there is here a statement that our judiciary is second class to the international tribunal and to other courts.

[00:06:46]>> I wouldn't want to speculate on that, your honor.

[00:06:48]>> Because it is not correct.

[00:06:49]>> Yes, your honor.

[00:06:50]>> Because your judiciary can be able correct.

[00:06:53]>> Yes, your honor.

[00:06:53]>> Can be enabled. Correct.

[00:06:55]>> That's correct.

[00:06:55]>> Can improve and become more efficient.

[00:06:57]Correct.

[00:06:58]>> That's correct.

[00:06:58]>> And the better that you'll become more efficient so that we will have to rely on ourselves. Correct.

[00:07:03]>> Yes.

[00:07:04]>> That's self-determination. Correct.

[00:07:06]>> That's correct.

[00:07:06]>> That is sovereignty. Correct.

[00:07:08]>> Yes, your honor.

[00:07:09]>> Yes. And therefore 9851 is enough >> as a domestic remedy.

[00:07:15]>> So our withdrawal from the international criminal court therefore need not be ruled upon by this court.

[00:07:23]Again your honor if we look at the action of the chief executive based on the requirements of the constitution.

[00:07:31]your honor and furthermore based on whether it was why should we rule on whether or not there needs to be a 2/3 concurrence for the withdrawal when we are satisfied that in terms of human rights protection there is enough >> your honor protection will only be uh will we will only be satisfied with protection >> is it because you want to embarrass the president >> no your honor >> is it because you want to embarrass this administration >> no your honor because the the ratification of the room statue.

[00:08:02]>> And by the way, the examination started by the prosecutor on the current situation as as it alleges, will it be stopped by the withdrawal?

[00:08:12]>> No, your honor, >> it will not.

[00:08:14]>> It will not, your honor, based on facts that have been happening up to one year.

[00:08:19]>> You still want us to rule on something that need not be ruled upon?

[00:08:24]>> Uh, again, your honor, if it is not based on the mandate of the constitution, your honor. Yes, your honor. We would like to for this honorable court to rule on it, your honor.

[00:08:33]>> Okay. Um, there is customary international law and there is treaty law. Correct?

[00:08:39]>> Yes, your honor.

[00:08:40]>> Yes. Can we withdraw from customary international law?

[00:08:43]>> No, your honor.

[00:08:44]>> Can we withdraw from treaty law?

[00:08:46]>> Yes, your honor.

[00:08:46]>> Yes. By getting out of the international criminal court, have we withdrawn from any international customary norm?

[00:08:54]>> No, your honor.

[00:08:54]>> None. is uh the international criminal court that procedure there is that customary norm the procedure itself is not your honor >> is complimentarity customary norm complimentarity yes your honor >> customary international law >> complimentarity your honor >> yes is there and state practice sufficient enough to create it as customary international law >> well I believe your honor if it if it goes into access to different bodies.

[00:09:26]>> Are you familiar with the international court uh criminal tribunal of Yugoslavia?

[00:09:30]>> Yes, your honor.

[00:09:31]>> Yes. Was it created through the international criminal court?

[00:09:34]>> No, your honor.

[00:09:34]>> How was it created?

[00:09:36]>> Uh by a UN resolution, your honor.

[00:09:38]>> Which UN body?

[00:09:40]>> Um if I'm not mistaken, the Security Council.

[00:09:43]>> Security Council. Are you familiar with International Criminal Tribunal of Rwanda?

[00:09:48]>> Yes, your honor.

[00:09:48]>> Where how was it created?

[00:09:51]>> Same. Your honor, >> what about special courts on Cherald Yonyi?

[00:09:55]>> Yes, your honor.

[00:09:56]>> How was it created?

[00:09:57]>> Um, again, see, your honor, these are the advoc uh an international criminal tribunal.

[00:10:10]>> Uh, yes, your honor.

[00:10:12]>> With limited jurisdiction, but al also it is only within Cheryl Yon. Correct.

[00:10:17]>> That's correct, your honor.

[00:10:18]>> Yes. Unlike uh the controversies in Rwanda and Yugoslavia where there were transboundary issues in Cheraldon, it was only within Cheraldon. Correct?

[00:10:26]>> Yes, your honor.

[00:10:26]>> Yes. And therefore, there are many other ways to institute criminal tribunals other than the International Criminal Court through our faults.

[00:10:35]>> Through your honor.

[00:10:36]>> Yes. So therefore, we lose nothing. Are we a member of the United Nation?

[00:10:41]>> We are your honor.

[00:10:42]>> Yes. By the way, uh who are not members of the International Criminal Court? Let me ask you, is the United States a member?

[00:10:53]>> Uh it is not your honor.

[00:10:54]>> No, it's signed in 2000 but did not uh >> unsigned it. It also unsigned.

[00:11:00]>> Unsigned. What about Russia?

[00:11:03]>> Uh I don't think so, your honor.

[00:11:04]>> What about China?

[00:11:05]>> No, your honor.

[00:11:06]>> Yes. So therefore there are significant countries with nationals who are sent to peacekeeping missions who are sent abroad through their intelligence operatives that are not part of the international criminal court. Yes, your honor.

[00:11:21]>> Yes. Are they violating customary law because they are not part of the international criminal court?

[00:11:27]>> Uh no your honor. Um but in fact these peacekeeping forces your honor if I may your honor if they find themselves here in the Philippines your honor and violate the room statute um they can be held liable under the room statute your honor simply because they are found in a state party your honor >> before we withdrew before we have withdrawn your honor.

[00:11:47]>> Yes. Can a nonparty a state which is a nonparty avail?

[00:11:54]>> Yes. So after the administration finishes this administration, is it possible for the next administration to actually trigger jurisdiction via communication to the prosecutor?

[00:12:06]>> That's possible, your honor.

[00:12:07]>> That's possible. So that remedy is also still there.

[00:12:11]>> But that is a political remedy, your honor.

[00:12:13]>> Yes. Like everything else, correct?

[00:12:15]>> Yes, your honor.

[00:12:16]>> Yes. As a matter of fact, se certain other things happened within the international criminal court unimagin unimagined by those that actually ratified it. For example, there were self references.

[00:12:29]There were countries that actually went and said come investigate us. Correct.

[00:12:33]That's correct.

[00:12:34]>> For example, Uganda, correct?

[00:12:38]>> Yes, sir.

[00:12:38]>> The Lord Resistance Army, correct? Um, the Central African Republic, correct?

[00:12:44]Congo for that matter right so it is possible for other countries to find a way to be in to involve the international criminal court is that not correct that's correct so I ask you again given that we have protections already under our laws given that this court stands able and willing to receive cases on human rights. Okay, given that there are many other ways to trigger international jurisdiction other than the international criminal court, given that you just need to wait for a maybe four years and convince another president to act politically and involve the Senate. Do we have to rule on the constitutional issue as to the withdrawal? Again, your honor, we will stand by our petition, your honor, and our stand that there is a need to rule, your honor. One, on the basis that it is the mandate of our constitution.

[00:13:40]>> Yes.

[00:13:40]>> Second, that it cannot be exercised, the withdrawal cannot be exercised in an arbitrary, whimsical, and a capriccious fashion. And third, it cannot effectively deprive.

[00:13:52]>> Why was the withdrawal arbitrary?

[00:13:54]Uh your honor based on the statement of withdrawal itself your honor.

[00:13:59]>> Yes.

[00:14:00]>> Uh it is her position that it has been withdrawn arbitrarily considering the protection that the room statute is supposed to give. The president felt that human rights at an international level is weaponized. That's in the respondent's comment. Yes, Ron. Isn't that the reason that the United States withdrew from the UN Commission on Human Council on human rights?

[00:14:25]Uh yes your honor.

[00:14:27]>> Yes. So that's also arbitrary.

[00:14:31]>> When a country feels that human rights is being used as a political agenda for others uh that is uh whimsical and arbitrary.

[00:14:40]>> Your honor um if I may your honor it would be difficult to compare the UN human rights council with the >> makes sense to you only because you are of a political bent. No, your honor, >> and uh you want this court to accept your political leanings.

[00:14:54]>> That's not the intent, your honor.

[00:14:56]Again, the the the petitioners here, your honor, have been battling against impunity, your honor, regardless of whatever administration, regardless of political.

[00:15:07]>> When we withdraw from the International Criminal Court, we are acknowledging impunity.

[00:15:13]>> I thought you just accepted that the courts are still functioning.

[00:15:17]>> Yes, your honor. But again, the Rome statute gives additional >> Yeah. Just so we're very clear.

[00:15:24]>> Yes, your honor.

[00:15:25]>> The Rome statute creates a court.

[00:15:27]>> That's correct, your honor.

[00:15:28]>> Creates a prosecutor.

[00:15:29]>> Yes, your honor.

[00:15:30]>> They do not come here and send all their investigators to help with the Commission on Human Rights to help the NOS's gather the evidence. Correct?

[00:15:39]>> Not at all, your honor.

[00:15:39]>> Okay. In fact, they will rely on evidence that will be produced by the NOS's that are here in the Philippines.

[00:15:46]Correct. Yes, your honor. And as mentioned by uh attorney Andres earlier your honor. So only when the Philippines has failed. Again perhaps in your memoranda you will convince me more that uh there is a diminishment of the protection given that what I see is um it is not yet there if you predict that uh it will happen. By the way your petition was filed late. Correct.

[00:16:12]>> Sorry your honor. You filed your petition six more than 60 days time that the withdrawal was submitted. Correct?

[00:16:18]>> Yes, your honor.

[00:16:19]>> Yes. So should we not dismiss your petition outright?

[00:16:22]>> No, your honor. Because the again the action is a continuing violation.

[00:16:26]>> You are familiar with the case of Aalio versus Aino. Correct.

[00:16:30]>> Yes, your honor.

[00:16:30]>> Where the Supreme Court made the distinction between Cerseiari for extraordinary jurisdiction and cersari under rule 65. Correct?

[00:16:37]>> Yes, your honor.

[00:16:38]>> And that cersurary under extraordinary jurisdiction is no longer covered by rule 65. Correct. Yes. Wrong. Not really that covered. And then there was the subsequent case of by the way who was the Ponente Aino Aralo versus Aino.

[00:16:52]I need to mention him. Justice Bersamin.

[00:16:54]Correct. And then it was followed by Amco versus Dole. The Ponente there was Justice Bion. Correct. Okay. I have no further questions. Uh Chief, thank you your honor.

[00:17:06]>> It can also like what happened you are in South Africa. It was another letter, your honor, that was >> Are we a colony of South Africa, by the way?

[00:17:13]>> No, your honor. But I'm just saying, your honor, that the procedure is the same, your honor. It's also another >> But that's South Africa. They have their own constitution. Correct.

[00:17:21]>> Yes, your honor. And >> are you South African, by the way?

[00:17:23]>> No, your honor.

[00:17:23]>> You're not.

[00:17:24]>> I don't look like one, your honor.

[00:17:26]>> Yes. Uh, but it's a privilege to look like a South African once in a while.

[00:17:30]>> Of course, your honor.

[00:17:30]>> Like Alicia Vicander, for instance, is South African if I'm not mistaken.

[00:17:34]Correct.

[00:17:34]>> My favorite um band you own is South African.

[00:17:37]>> Yes. But in any case, the point there is we can only rely on our law, not that of South Africa or the UK. Correct? And more importantly, not the United States.

[00:17:46]Correct.

[00:17:47]>> May I answer that your honor? Because this court has in many situations actually look to the jurisdiction of rights.

[00:18:01]>> I am asking a question.

[00:18:02]>> Sorry, your honor. And I hope you would listen to the question before you answer because there's no point that you would interject or interrupt with your own answer without finishing the question.

[00:18:10]>> I apologize.

[00:18:11]>> Yes. Now uh in other words, we are not uh a colony of South Africa. Is that not correct?

[00:18:17]>> That's very true, your honor.

[00:18:18]>> Yes. And therefore in so far as this court is concerned, there can they can be persuasive but they are not binding on us. Is that >> correct your honor? Especially because uh South Africa has a unicameal body and we have a bicameal body. Is that not correct?

[00:18:34]>> Not necessarily your honor.

[00:18:36]>> And that the United Kingdom which also was mentioned in your petition has a parliamentary form of government and we have a presidential form. Is that not correct?

[00:18:44]>> We agree that uh they have those forms of government that we disagree on honor.

[00:18:48]they have a parliamentary form of honor.

[00:18:50]We agree but uh >> I hope you just answer the question because again it wouldn't matter if you answer a different question uh for this repres for this uh justice. Okay, >> your claim is that the president has the power of indirect legislation. Is that correct?

[00:19:08]>> Yes, your honor.

[00:19:09]>> So the president can legislate via a treaty with the concurrence only of the Senate. Correct?

[00:19:15]>> Well, sorry honor. That's not what I meant. What I meant your honor is that uh by the act of withdrawal you >> because you said that a treaty has the effect of law without qualifications and a treaty as you said is negotiated by the president through his uh or her alter egos and the power of the senate is simply to concur. Is that not correct?

[00:19:39]Therefore in that sense the president from your constitutional theory has the power of indirect legislation. No, your honor, we disagree with that theory, your honor.

[00:19:48]>> So, a treaty does not have the effect of law.

[00:19:51]>> It has the effect of law. Your honor, >> who negotiates a treaty?

[00:19:54]>> It's the president, your honor.

[00:19:55]>> Who determines the content of the treaty?

[00:19:58]>> It's the president, your honor.

[00:19:59]>> When it submits it to the Senate, and the Senate amend the treaty.

[00:20:03]>> No, your honor.

[00:20:04]>> No, because that would mean that the the president will again renegotiate the treaty. Correct.

[00:20:08]>> That's correct, your honor.

[00:20:09]>> Yes. So therefore the one that initiates and writes the content of the treaty is the president. Correct.

[00:20:16]>> That's correct. Y >> and if the president and if the treaty has the effect of law the president has the power of indirect legislation.

[00:20:22]Correct.

[00:20:23]>> Well I would disagree with that you >> uh but that's the effect. Correct. The president initiates and writes the content. Therefore the president initiates the crafting and writes the content of that instrument which has the effect of law. Correct.

[00:20:40]>> That's correct, your honorable.

[00:20:41]>> Yes. Uh >> [music]