Dispatch from Crame No. 1046:
Sen. Leila M. de Lima on the SC's dismissal of the Petition questioning Duterte's unilateral withdrawal from the Rome Statute

3/19/21

Without the full text of the Decision, the Supreme Court recently announced the dismissal of our petition seeking the nullification of Duterte's unilateral withdrawal from the Rome Statute that established the International Criminal Court. We filed the petition not so much so that Duterte and his death squads will not escape liability for their crimes against humanity -- they won't, because the ICC retains jurisdiction over crimes being committed until the effectivity of the withdrawal in March 2019 -- as it is to protect the country from whimsical abrogation of treaties by a President acting for his own self-interest and survival and not that of the nation.

The Supreme Court says that their Decision on the petition will include guidelines on the abrogation of treaties for the guidance of the Executive and the Senate, which is strange, because the other end of the spectrum of legal scholarship that favors non-intervention of the Court on the issue of treaty abrogation precisely also lectures that it cannot dictate upon the Executive and the Senate how to resolve the issue between themselves on the ground of the political question doctrine -- that the courts will not interfere on a matter that exclusively pertains to the political branches of government.

But in this case, it appears that the Court, after letting Duterte get away with the capricious unilateral withdrawal from the Rome Statute, will now tell us, both the Executive and the Senate, how to deal with similar controversies on treaty abrogation in the future. Does this mean that treaty abrogation is not a political question after all, and that the Court could have ruled on the merits of the case based on purely constitutional grounds if not for the convenient excuse of mootness it made up for itself?

If this is the case, and again we still have to see the Decision in full, then it would appear that this is an instance of the Court avoiding its mandate to rule on constitutional questions on the flimsy ground of mootness, while at the same time being so activist as to lay the "guidelines" for the resolution of future controversies that are not only not yet ripe for adjudication -- hence not susceptible of the Court's jurisdictional cognition -- but in fact do not yet exist at all.

We must remember that what we filed was a petition for certiorari and prohibition, not one for declaratory relief. We did not ask the Court to settle a question of law for a future controversy on treaty abrogation, but on an actual and existing controversy that is the whimsical abrogation by a murderous President of a landmark global treaty on human rights to protect his own hide.

So which is which? Is this a political question issue that the Court will not touch with a ten-foot pole? Or is it a petition that raises valid questions on constitutional law susceptible of judicial determination, so susceptible that the Court will even go as far as to issue "guidelines" for future incidents, except for the single incident that matters most in this case, i.e., Duterte's self-serving withdrawal from a treaty that will prosecute him for his crimes against humanity? But if the latter, why would the Court, in this case, then choose to run behind the cover of mootness?

The way the Court approached the resolution of this case is therefore disappointing, to say the least, as to be characterized as nothing less than evasive, if not escapist. It was nothing more than a classic balancing act of a Court that does not want to irk the President, but at the same time would still like to appear independent. ###

(Access the handwritten copy of Dispatch from Crame No. 1046, here: https://issuu.com/senatorleilam.delima/docs/dispatch_1046)