The Manila Times - Leonen sits on critical ICC case

News & Interviews
25 January 2021

By Jomar Canlas | The Manila Times

Supreme Court Associate Justice Marvic Mario Victor Leonen has been sitting on the petitions of several senators and the Philippine Coalition for the International Criminal Courts (PCICC) questioning the decision of President Rodrigo Duterte to withdraw Philippine membership in the International Criminal Court (ICC) without Senate concurrence.

The case was raffled off to Leonen after it was filed on March 16, 2018, The Manila Times has learned from court documents it has obtained.

The ICC petition has hardly moved and has seen the retirement of two chief justices — Teresita Leonardo-de Castro and Lucas Bersamin.

It might also outlast the present chief justice, Diosdado Peralta, who will retire on March 27.

Leonen last asked for oral arguments on the case on August 28, 2018, during de Castro’s time.

Supreme Court magistrates are required by law to decide on a case within 24 months from the filing of the last pleading, brief or memorandum.

The case involved two petitions. The first was submitted by opposition Senators Francis Pangilinan, Franklin Drilon and Ana Theresia Hontiveros, and former senators Paolo Benigno Aquino 4th and Antonio Trillanes 4th against then-Foreign Affairs Secretary Alan Peter Cayetano, Executive Secretary Salvador Medialdea and current Foreign Affairs Secretary Teodoro Locsin Jr.

It was docketed as GR 238875.

The second petition was filed by the PCICC against the Office of the Executive Secretary and docketed as GR 238483.

In its Feb. 12, 2019 resolution, the court tracked the progress of the case through memoranda filed by the Solicitor General on Nov. 6, 2018, the counsel for Pangilinan, Drilon, Aquino and Trillanes on Nov. 8, 2018, the counsel for Senators Leila de Lima and Hontiveros on Nov. 8, 2018, and a PCICC Joint Memorandum on Nov. 19, 2018.

The PCICC memorandum was the last pleading filed within the 24-month period required by the Constitution.

To this day, the case awaits Leonen’s decision.

The court en banc included the case in its Jan. 19, 2021 agenda, asking Leonen if it “can be now submitted for deliberations.”

The case stems from a preliminary report released by the office of the ICC Prosecutor Fatou Bensouda that presented evidence that crimes against humanity had been committed during Duterte’s avowed war against illegal drugs.

At least 5,000 of what police alleged were suspected drug users and dealers were killed in the controversial Oplan Tokhang.

The Bensouda report angered the President, who ordered that the Philippines sever ties with the court.

The PCICC argued that Duterte “gravely abused his discretion in an act tantamount to an absence or a lack of jurisdiction, when he unilaterally decided to withdraw the membership of the Philippines from the International Criminal court, as his act violated the constitutional system of checks and balances in treaty making under Article VII, Sec. 21 of the 1987 Charter.”

In their petition for certiorari and mandamus, the senators quoted Article VII Section 21 of the Constitution that states “entering into treaty or international agreement requires participation of Congress, that is, through concurrence of at least 2/3 of all the members of the Senate.”

They pointed out that the Rome Statute, which created the ICC, is a treaty entered into by the Philippines which has the same status as a law enacted by Congress.

They insisted that withdrawing from the Rome Statute requires legislative approval.