OPINION: Duterte’s invented reason why the Int'l Criminal Court cannot prosecute him

Raïssa Robles

Posted at Mar 20 2019 07:14 PM

President Rodrigo Duterte claims the International Criminal Court (ICC) cannot prosecute him mainly because the Rome Statute which created the ICC never took effect in the Philippines.

He argues that although the Senate did ratify it, the Rome Statute was never published in the Official Gazette nor in any Philippine newspaper of general circulation.

Thus, he concludes in his nine-page “Statement” issued on March 13, 2018: “There being no jurisdiction of the said law, it stands to reason that the Rome Statute cannot be enforceable in the Philippines hence the International Criminal Court has not acquired jurisdiction nor can it acquire jurisdiction over my person.”

This lame excuse is similar to a student telling his teacher that the dog ate his homework.

According to Duterte, a former city prosecutor:

"…in our jurisdiction, it is required that a law before it takes effect, the same must be either published in the Official Gazette or in a newspapers of general circulation.”

On August 30, 2011, the Philippine Senate ratified the treaty in the matter of the enforcement of the Rome Statute between the Philippine Government and the United Nations.”

Official record particularly the Official Gazette, the Rome Statute or the law by which I am now being subjected to a preliminary examination was not published thereat. Neither is there any showing that the said Rome Statute was ever published in a newspaper of general circulation.”

There being no jurisdiction of the said law, it stands to reason that the Rome Statute cannot be enforceable in the Philippines hence the International Criminal Court has not acquired jurisdiction nor can it acquire jurisdiction over my person.”

Duterte is correct when he says that the Rome Statute, which is the ICC governing law, HAS NEVER BEEN PUBLISHED BY THE OFFICIAL GAZETTE nor by a newspaper of general circulation.

And for four good reasons.

First, because the Rome Statute is not a law enacted by Philippine Congress, requiring final approval by the President. In fact, treaties and international agreements like the Rome Statute are the exact opposite. It is the President who submits these to the Senate for ratification.

Second, the Senate ratifies treaties and international agreements by approving A SENATE RESOLUTION. NOT A LAW.[NOTE: Duterte insists on calling the Rome Statute “a law”. The word “law” has a specific definition in the Philippine Constitution. It has to be passed by both the Lower House and the Upper House of Congress. Clearly, the Rome Statute is not “a law”, as defined by our Constitution.]

Third, it is the Senate portal, not the Official Gazette under the Office of the President, that publishes international treaties and agreements it has ratified. The text of the Rome Statute is in this portal. Click on this link

In the same manner, only the Supreme Court portal publishes decisions it makes as well as those of the Sandiganbayan, Court of Appeals and Court of Tax Appeals, not the Official Gazette.

Remember, we have three co-equal branches of government.

Fourth, in 2011, the Office of the President authorized the Department of Foreign Affairs (DFA) under Secretary Albert del Rosario to take charge of publishing ALL international treaties and agreements ONLINE. At that time, these numbered 1,600.

In fact, the Official Gazette announced this development online:

A September 7, 2011 press release from the Department of Foreign Affairs:

"The Department of Foreign Affairs (DFA), through its Office of Legal Affairs (OLA), has made available on its website the full text of some 1,600 international agreements entered into the country since 1946, under its 'Philippine Treaties Online' project.

“The launch of the Philippine Treaties Online is a significant achievement for the Department pursuant to the commitment of the Aquino Administration to “transparent, accountable and participatory governance,” Foreign Affairs Secretary Albert del Rosario said.

The announcement gave the link to the Treaties as—https://dfa.gov.ph/treaties/ola

The contents had been painstakingly gathered by former DFA spokesman and now Ambassador to Malaysia J. Eduardo Malaya.

The Philippine Daily Inquirer carried the news release without the DFA link:

DFA: 1,600 PHL treaties now accessible online
But now, when you go to https://dfa.gov.ph/treaties/ola, you get the message – “category not found”.

Try it.

In the DFA website, under Resources, when you click on the link “Philippine Treaties Online”, you get NOTHING.

Here’s the link.

Try it.

Why were copies of the 1,600 plus treaties signed by the Philippines disappeared? When I told my hubby Alan @hotmanila about it, he asked me: “Was it upon the initiative of a low level coward or the orders of a high level coward?”

♦ ♦ ♦

Just to make sure, I asked former Presidential Communications Undersecretary Manolo Quezon why the Official Gazette, which was once under his care, never published the Rome Statute.

Quezon told me:

"International agreements were handled by DFA and Senate concurrence is a legislative document so it would only appear in paper gazette if Senate and/or DFA had copy included, while we did not have a direct pipeline to Senate since they handle their own website.”

Quezon added:

"On the other hand DFA has a section on treaties on its site as well as announcing treaty matters, coordination was always taking place to ensure primacy of DFA on foreign affairs matters and to avoid improper use of terms.”

I also asked Quezon to click on the DFA link—https://dfa.gov.ph/treaties/ola

He confirmed that the link was dead.

♦ ♦ ♦

Only rarely has the Official Gazette published an international agreement. One of them is the “Mutual Defense Treaty between the Republic of the Philippines and the United States of America, August 30, 1951” [see – https://www.officialgazette.gov.ph/1951/08/30/mutual-defense-treaty-between-the-republic-of-the-philippines-and-the-united-states-of-america-august-30-1951/

Another is the Enhanced Defense Cooperation Agreement between Manila and Washington.

♦ ♦ ♦

Still, let’s test Duterte’s argument with a simple experiment

Don’t just take my word for it.

Let’s test the correctness of Duterte’s argument that if an international agreement such as the Rome Statute was not published in the Official Gazette or in a newspaper, it is not in effect and therefore does not cover Filipinos.

This argument should cover ALL TREATIES AND INTERNATIONAL AGREEMENTS ratified by the Senate, right? Duterte makes no exception.

In August 2012 – or a year after ratifying the Rome Statute – the Senate also ratified the Maritime Labour Convention 2006.

Senate Foreign Relations Committee Chair Loren Legarda underscored its importance to Filipino seafarers who are among the best in the world. She said,

Our ratification finally and justly establishes the bill of rights of 1.2 million seafarers worldwide, 400,000 of whom are our very own. We should take great pride in this achievement.”

You can read Legarda’s press release by clicking the link below:
https://www.senate.gov.ph/press_release/2012/0813_legarda1.asp

You can read Senate Resolution 118 concurring to Maritime Labour Convention 2006 be clicking on this Senate link.

Senate Resolution 118, however, does not append the entire Convention. You can read the text of the Convention by clicking this link on the International Labor Organization website

Now, let’s pretend we’re Duterte.

Go to the Philippine Gazette website: https://www.officialgazette.gov.ph

In the search bar, type in the words: Maritime Labour Convention.

Did you get a hit?

No?

Using Duterte’s logic, Filipino seafarers are not yet covered by the Maritime Labour Convention because this international agreement cannot be found in the Official Gazette website.

I sincerely doubt any Philippine newspaper had published the entire text – which Duterte insists should be done with international agreements – since the English version of the Maritime Labour Convention runs to 120 pages.

Let’s try again.

Another very important international agreement that the Philippine Senate concurred in is the Convention Concerning Decent Work for Domestic Workers, adopted by the Conference at its 100th Session, Geneva, 16 June 2011. It sets a Bill of Rights for Filipino domestic workers working in the Philippines and abroad.

By signing this Convention, the Philippine government and all other governments that are signatories require employers to provide contracts with clear terms for working hours, wages, decent living conditions, paid vacation leaves and weekly off days. It is what helps protect from abuse our more than 2.2 million OFWs working as domestics abroad.

According to Duterte, if this Convention is not in the Official Gazette, then Filipinos are not covered.
So again, go to https://www.officialgazette.gov.ph/ and type on the search bar – Convention Concerning Decent Work for Domestic Workers.

Again, the document IS NOT THERE. So just like the Rome Statute, this Convention Concerning Decent Work for Domestic Workers was never in effect because it was never placed in the Official Gazette.

Senate Resolution No. 115 concurring with the passage of this Convention is in the Senate portal. Click on – https://www.senate.gov.ph/15th_congress/resolutions/resno115.pdf

The Senate also uploaded the text of the entire Convention – see https://www.senate.gov.ph/15th_congress/Treaties/international%20labour%20conference%20189.pdf

Let’s try some more.

In 2012, Manila and Beijing agreed to formalize a mutual legal assistance agreement on criminal matters. The Senate concurred by approving Senate Resolution No. 83 entitled – Resolution Concurring in the Ratification of the Treaty between the Republic of the Philippines and the People’s Republic of China Concerning Mutual Legal Assistance in Criminal Matters.

Again, this is not in the Official Gazette. But it is in the Senate portal: https://www.senate.gov.ph/15th_congress/resolutions/resno83.pdf

Going by Duterte’s logic, this Treaty is not yet in effect because it is not published in the Official Gazette. So therefore China and the Philippines should not be exchanging any information about criminals, especially drug traffickers.

Let’s try just one more time.

On October 8, 2008, the Senate approved Senate Resolution No. 131, Resolution Concurring in the Ratification of the Japan-Philippines Economic Partnership Agreement (JPEPA).

This was a ground-breaking agreement which widened the areas where Filipino workers could be deployed in Japan. Before JPEPA, Filipinos could only work in bars, clubs and in some domestic settings. With JPEPA, Filipinos were allowed to work in construction, as caregivers and nurses in hospitals. JPEPA also eased tariffs on Philippine exports.

But, again, JPEPA IS NOT PUBLISHED IN THE OFFICIAL GAZETTE.

Senate Resolution No. 131 on JPEPA is published in the Senate portal – https://senate.gov.ph/14th_congress/resolutions/resno131.pdf

However, the entire JPEPA agreement is available on the website of the Department of Trade and Industry – https://www.dti.gov.ph/international-commitments/bilateral-engagements/pjepa

Using Duterte’s logic, JPEPA is NOT A DONE DEAL because, like the Rome Statute, it is not in the Official Gazette. And I doubt if the text of JPEPA was ever published in a newspaper. It runs close to a thousand pages because of the Annexes.

Gee, so many treaties benefiting our Filipino workers are defective and they never took effect because, according to Duterte, for treaties to take effect these should first be published in the Official Gazette or a newspaper.

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.