What the Supreme Court's ruling on the ICC means

Transcribed by TurboScribe.ai. Go Unlimited to remove this message.

He did from the UP College of Law in 1991. In 1995, he earned a Master of Studies in
Environmental Law from Vermont Law School. He graduated as cum laude.

In 1996, he earned his Master of Laws at the University of California, Los Angeles. Ladies and
gentlemen, may I present Professor Dante Gatmaita. Good morning.

Good morning to our guests, the Dean and the faculty of the UP College of Law, our
students and guests. Thank you to the Justice George Malcolm Foundation for organizing
this event and to the Institute of International Legal Studies for making sure it happens.
Today, I'm going to talk about an aspect of the Panganinan versus Cayetano case and this
would be the grounds for the dismissal of the case.

And here, I'm arguing that these grounds are both old and new. That's why I call them
variant technicalities. I think the court fashioned new technicalities so that it will have a
reason to dismiss the case.

Now, I will talk about the two grounds which were cited by the Supreme Court. One is the
standing of the petitioners. The Supreme Court saying that they did not have standing and
mootness.

And of course, in both cases, I argue and I show how the court might have gotten it wrong.
These are my takeaways from the case. I have two main ones.

The first one is that this is a win for President Duterte. What he wanted was a way out of the
Rome Statute and that's exactly what he got. Now the media, when the decision came out,
kept focusing its attention on those passages from the decision that suggested that the
Philippines was still bound to cooperate with the ICC despite the withdrawal from the Rome
Statute.

And it's a win for Duterte because that's not even a ruling of the Supreme Court. That is
found in the Rome Statute itself as I'll show you in Article 127 on withdrawal from the
statute. And here the Supreme Court simply reiterates what the statute says and that is that
a state shall not be discharged from its obligations while it was a party to the statute and
the withdrawal should not affect any cooperation with the court.

So it's not that the Supreme Court continued to mandate cooperation from the national
government. It's already stated in the Rome Statute so it's nothing new. The second
takeaway that I have is this may not be valuable as a constitutional law case or public
international law case because the case was dismissed on technicalities.

So it's a great case for legal method because we get the chance to analyze the rule on
standing for legislators. We also have a chance to analyze mootness and whether it was
properly applied by the Supreme Court in this case. So let's look at the first ground for the
dismissal of the case and that has to do with standing.

And before Pangilinan, the rule on standing for legislators was very very clear. A legislator
had standing to challenge an act of the executive amounted to a usurpation of legislative
powers. And in another case the Supreme Court said a member of the House of
Representatives has standing to maintain and violate the prerogatives powers and privileges
vested by the Constitution in his office.

So if a legislator felt that his or her prerogatives were being usurped by another branch of
government that confer standing on that legislator. In a more recent case the Supreme
Court reiterates this rule. It's an old one and it says that the legislators will have legal
standing to see to it that the prerogative powers and privileges vested by the Constitution in
their office remain and violate.

So they are allowed to question official actions which in their minds infringes on their
prerogatives as legislators which I think applies clearly to this case because the petitioners
were arguing that a unilateral withdrawal from the Rome Statute cannot be constitutionally
done because concurrence of the Senate is required. However this is the ruling that we get
from the Supreme Court and this is why I called it a violence because and this is a quote
from the decision itself. The Supreme Court said that the Senate didn't enforce a Senate
resolution that expressed its position on the issue and for the first time I think the Supreme
Court has ruled that an action by the Senate was necessary before coming to this court
which I think is unusual because it has always been an individual senator who can do this
and now the Supreme Court has tied standing to an institutional position to be made by a
chamber of Congress.

Again quoting from the court it says the court says that the Senate did not pass that
resolution expressing its position that concurrence is required before a withdrawal from the
Rome Statute can be validly made for petitioners to bring this case to court. But the fact
that the Senate did not act on that resolution according to the court forecloses the
institution's or the senator's chances of bringing this case to court and that bothers me a lot
because that's not what I learned in law school. What's wrong with what the court just said?
The institutional position of the Senate does not confer standing.

It doesn't. As I explained earlier it is when any senator feels that their prerogatives are being
asserted by another branch of government that gives them standing when they're trying to
protect their office that gives them standing. It's not the Senate as an institution so whether
the Senate as an institution has a position on the issue or not then it shouldn't really matter.

Next the Supreme Court seems to be telling us that the constitutionality of the act of the
President is determined by the Senate by refusing to act on that resolution. By refusing to
pass it then apparently the Senate has no problem with it and therefore it's constitutional.
That's also wrong and this approach by the Supreme Court actually gives legislators or say a
chamber of Congress dominated by the President's allies to prevent by proposing
institutional positions on an issue and then refusing to act on it.

It therefore prevents anyone from going to court to challenge the act of the President
because as an institution they will say well the Senate doesn't see anything wrong with it or
the House of Representatives doesn't see anything wrong with it therefore we're not going
to go to court and according to the Supreme Court therefore you don't have standing. I
think that's just messed up. Now every first year student knows that there is a nuclear
option available to constitutional litigators and that is the transcendental importance
argument.

But again this is what the Supreme Court says here that the petitioners did raise
transcendental importance but the case does not involve funds or assets. Neither was there
any express disregard of a constitutional or statutory prohibition and petitioners fail to show
that no other party has a more direct personal and material interest. That's amazing
because I think every word in that sentence is wrong with all due respect.

The court adds that the alleged transcendental importance of the issues will be better
served when there are actual cases with proper parties suffering an imminent injury. For the
court to hear the case according to Pangilinan versus Cayetano there has to be a party and
that just makes things worse. I'm offended by the decision.

First of all this is not a taxpayer suit in which case there's no reason for anyone to invoke the
illegal disbursement of public funds because that is necessary when you're arguing for
standing as a taxpayer. But that's not what you're doing when you're arguing transcendental
importance. When you're doing that you're admitting you don't really have standing but the
issues are so important that you're asking the court to hear the case anyway.

When you argue there is an illegal disbursement of public funds what you're actually saying
is I am standing as a taxpayer. And then the court says that there's no actual injury or
there's no violation of any constitutional prohibition. I think I think there is because the
senators are arguing that their concurrence is needed before a withdrawal from the Rome
statute can be validly done.

So there is a constitutional prohibition and the court is looking for actual imminent injury
which is not necessary in a case where you're invoking transcendental importance. The
beauty of that argument is that you're asking the court to set aside a technicality which is
standing in this jurisdiction because of the importance of the issues and there is an array an
avalanche if you will of cases saying exactly that. That because of the importance of the
issue we are relaxing the rules on standing.

You don't have to have standing it's just a technicality anyway. Let's deal with this issue
because it requires resolution from the court. And just to be clear this is the point I'm trying
to make transcendental importance dispenses with the standing requirement.

So you don't you don't decide in this transcendental importance by looking for standing. You
don't say okay it's important but show me someone who has a direct interest in this case
someone who is directly injured. The supreme court is contradicting itself.

Let us go to the second ground for the dismissal of the case and that is mootness. And here
what the supreme court said was that all the acts that are necessary for the withdrawal
from the Rome statute have been consummated and therefore there's nothing left to do
because the Philippines has withdrawn from the Rome statute. And to me that's a problem
because I think the acceptance of the ICC of the withdrawal cannot be considered a
supervening event that renders a case moot.
It's not because there's an argument that it was unconstitutionally done. So if the
withdrawal was unconstitutional then nothing could have been validly transmitted to the
ICC and the ICC could not have validly accepted anything and the withdrawal was not validly
done. Therefore the case is not moot.

And I liken this case you know to the cases that we have where an unqualified aspirant of
public office is elected. Say if you were a fugitive from justice you are disqualified and then
because of your charm and and political machinery you win. The supreme court doesn't say
well the people have spoken and there's nothing else for us to do.

The supreme court will say as it has but it doesn't matter how many votes you got if you're
disqualified you're disqualified and you were never validly elected. So there even if the
people spoke you know the voters spoke it doesn't resolve the issue. If you're disqualified
you could not have been validly elected into office.

So in the same way an unconstitutional act on the part of the president could not have
rendered the case moot. And even if the case was moot every first year law student knows
that there are exceptions to the mootness doctrine and the supreme court typically gives us
four exceptions. And here it's listed in David versus Mojavegala Royal.

Now and if we look through them I think we satisfy the exceptions. First of all there's a grave
violation of the constitution and that's what the senators are saying. You violated the
constitution because you require concurrence from two-thirds of the senate.

Let's skip to the second one because I'll discuss it later. And then the court says there's an
exception when constitutional issues raised requires formulation of controlling principles
which I think happened here because despite dismissing the case the court went on for
future guidance of litigants to lay down rules on withdrawals from treaties and other
international agreements. That's dumb because we've entered into a whole lot of treaties.

So it can happen again. So on those three grounds it's clear that even if the case was moot
the court could have decided the case. And on that second exception the supreme court
said you can satisfy the second exception if there is some perceived benefit to the public.

And in one case the supreme court said there's no hard and fast rule in determining
whether a case involves paramount public interest but there should be some perceivable
benefit to the public which demands the court to proceed with the resolution of a case that
is otherwise moot. Some perceivable benefit to the public. And are there perceivable
benefits to the public in this case? I would say so.

One is the proper interpretation of the constitution. I think we all ought to know what the
rules are when it comes to withdrawing from treaties and other international agreements.
That by itself is a benefit that we can all enjoy.

And secondly of course the withdrawal from the Rome statute affects the remedies
available to the thousands of victims of extrajudicial killings that have erupted really during
the Duterte regime. So on those two notes it's also clear that we satisfy the second ground
for exception under the mootness doctrine. So one it's not moot.
Two even if it was we satisfy all the requirements for the exceptions and therefore the court
could have if it really wanted to decided on this case. A couple of notes I think Bangilinan
versus Cayetano cluttered the constitutional litigation with variant technicalities. New things
to think about when you're litigating.

Although my position is that these are just simply wrong. But the Supreme Court has spoken
so that's the rule. I have to revise my book on legal method again.

And this victory gives President Duterte his latest win in this spotless record before the
Supreme Court. Probably the only president we've ever had who's never lost in the post-
Marcos era anyway. So there I would like to thank you and I look forward to a fruitful
discussion at the proper time.

Thank you.
Transcribed by TurboScribe.ai. Go Unlimited to remove this message.