Presidential Spokesperson Harry Roque engages in legal gymnastics to arrive at a self-serving conclusion that the ruling of the Supreme Court ensnaring President Rodrigo Duterte under the jurisdiction of the International Criminal Court (ICC) is an obiter dictum or an aside commentary. 

The ruling of the Supreme Court casting aside Duterte’s repeated posturing that he would defy the jurisdiction of the ICC over him because the Philippines has withdrawn from the Rome Statute on March 16, 2018 is not an obiter but a principal part of the main decision or ratio decidendi.

Among other cases, in Integrated Bar of the Philippines vs. Mayor Jose Atienza, wherein Roque himself was one of the petitioners and counsel, the Supreme Court ruled in favor of the petitioners by holding that “even in cases where supervening events have made the cases moot, this court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition, yet evading review… The susceptibility of recurrence compels the court to definitely resolve the issue at hand.”  

Consequently, despite dismissing the petition to declare the Philippine withdrawal ineffective without the concurrence of the Senate because the withdrawal had been subsequently accepted in fact by the ICC, the Supreme Court resolved nonetheless the following principal issues which are bound to recur: 

(1)     The relevance and applicability of Article 127 of the Rome Statute, which created the ICC, when it provides that: (a) the withdrawal of a state party becomes effective only after one (1) year from the receipt of the notification of the withdrawal by the United Nations Secretary General; and (b) the withdrawal of the Philippines became effective only on March 17, 2019. 

(2) All covered acts like crimes against humanity committed in the Philippines between November 2011, when the Philippines became a state party, and March 16, 2018, before the Philippines’ withdrawal became effective, falls under the jurisdiction of the ICC, which Duterte cannot evade or defy, and the Philippine government is obligated to cooperate with the investigation by the ICC prosecutor. 

(3) The President does not have the sole and absolute power to withdraw from a treaty without the prior concurrence of the Senate. 

Moreover, the ruling of the High Court cannot be considered an obiter because it specifically invokes Article 127 of the Rome Statute which is effective and applicable to the Philippines even without the subject decision of the Supreme Court.

Furthermore, the ruling carries tremendous jurisprudential weight because it is a unanimous decision of a full Court. 

EDCEL C. LAGMAN