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io free youtube transcript

# What the Supreme Court's ruling on the ICC means
# https://www.youtube.com/watch/fhcDyvrjU7M

00:00:24.320 do
00:00:32.820 [Music]
00:00:59.520 morning fina
00:01:01.600 morning sir
00:01:13.510 [Music]
00:01:21.040 morning rico this is dang morning
00:01:24.320 hey bang
00:01:52.399 wonderful to see you
00:02:36.520 [Music]
00:02:45.120 good morning i am michael chu from the
00:02:47.440 u.p college of law and the up law center
00:02:50.239 institute for international legal
00:02:51.840 studies
00:02:54.319 and i'm fina tantouica representing the
00:02:56.720 george
00:02:58.080 foundation we will be your hosts for
00:03:00.080 today
00:03:01.519 our malcolm lecture today is entitled
00:03:03.920 understanding the president's treaty
00:03:05.840 powers tenant concurrence invested
00:03:08.400 rights under the recent pangilinan
00:03:10.319 versus cayetano ruling a timely webinar
00:03:13.200 on the recent decision resolving
00:03:15.760 petitions that challenged the withdrawal
00:03:18.720 of the philippines from the rome statute
00:03:20.480 without the concurrence of the senate
00:03:22.959 before we turn the floor over to our
00:03:25.519 guests allow us to recognize the
00:03:27.440 organizers of this webinar this malcolm
00:03:29.840 lecture the u.p college of law
00:03:32.400 the ut law center institute of
00:03:34.560 international legal studies and the
00:03:36.640 justice george malcolm foundation
00:03:39.360 with us today are the heads of these
00:03:41.280 institutions dean carlo vistan and upl's
00:03:44.480 director romel casa senforce former
00:03:47.360 senior associate justice antonio t
00:03:49.440 carpio who is the chair of the malcolm
00:03:51.440 foundation
00:03:53.760 on behalf of the organizers of this
00:03:56.319 forum
00:03:57.360 we wish to acknowledge the presence of
00:03:59.599 our esteemed guests this morning
00:04:02.159 may i start with
00:04:04.159 ub president and former college of law
00:04:06.319 dean professor danilo concepcion if he
00:04:08.879 is in
00:04:12.640 the trustees of the malcolm foundation
00:04:15.360 led by
00:04:16.880 former ombudsman and supreme court
00:04:19.199 associate justice conchita carpio
00:04:21.279 morales
00:04:22.400 justice chip is trying to get in
00:04:28.160 former commissioner and audit chair
00:04:30.160 attorney grace politan
00:04:36.240 former secretary of national defense and
00:04:38.479 president of the upload alumni
00:04:40.000 foundation attorney avelino nono cruz jr
00:04:46.880 former up college of law dean and
00:04:48.960 professor of constitutional law pacifico
00:04:51.360 agave
00:04:52.360 [Music]
00:04:57.280 college of law dean carlo vistan who
00:04:59.440 sits in the board ex-official
00:05:04.240 i regret that one of our trustees cannot
00:05:06.560 be with us this morning he happens to be
00:05:09.039 the ponente of the case we will be
00:05:10.720 discussing
00:05:11.919 and i refer to none other than supreme
00:05:14.000 court associate justice and former dean
00:05:16.320 of the college of law marv vikkleon
00:05:20.000 we also have with us
00:05:21.759 this morning a special guests our former
00:05:24.880 malcolm trustee our beloved professor of
00:05:27.360 constitutional law
00:05:29.360 retired supreme court justice vicente v
00:05:32.240 v mendoza good morning sir
00:05:36.960 the former holder
00:05:38.479 of the malcom professorial chair in
00:05:40.400 constitutional law former icc judge and
00:05:43.919 u.p college of laudin
00:05:46.080 professor raul pangalangan
00:05:51.440 and of course
00:05:52.560 the director of the institute of human
00:05:54.800 rights of the u.p law center professor
00:05:57.680 beth
00:06:01.520 with us also this morning is the
00:06:03.360 president of the philippine bar
00:06:04.960 association and professor of
00:06:07.520 constitutional law the ateneo our very
00:06:10.400 own alumnus attorney rico v domingo
00:06:14.319 good morning everyone
00:06:16.960 we also acknowledge the presence of our
00:06:19.280 beloved former up college of lady
00:06:21.759 mufides koiderotan
00:06:24.639 morning
00:06:27.360 mike do you have other guests you wish
00:06:29.280 to acknowledge
00:06:30.639 yes thank you for that tina i do want to
00:06:32.880 acknowledge our professors who are here
00:06:35.120 the members of the faculty so far we
00:06:37.680 have professors
00:06:41.680 professor beth pangalangan is also here
00:06:44.479 professor espinilia ortiz associate dean
00:06:47.919 solomon lumba professor dijon reyes
00:06:50.400 villarreal lonzon and maliari welcome
00:06:53.520 professors
00:06:55.680 profina i know that you are a senior
00:06:58.319 lecturer here at the uk college of law
00:07:00.560 and at the same time you're also the
00:07:02.000 secretary of the trustees of the malcolm
00:07:04.560 foundation perhaps you could give us all
00:07:06.960 a brief profile of the malcolm
00:07:08.960 foundation and the malcolm lectures
00:07:12.800 gladly mike i will try to be as brief as
00:07:15.360 i possibly can
00:07:17.039 what i will recount i came to know
00:07:19.840 through the late supreme court associate
00:07:22.000 justice amorphina herrera who i clerked
00:07:24.960 for right after passing the bar in 1989
00:07:28.800 she is a god daughter of justice george
00:07:32.240 malcolm
00:07:33.280 the u.p college of law's founder and
00:07:35.520 first dean
00:07:37.599 the year was 1960
00:07:40.160 justice malcolm came back to the
00:07:41.840 philippines during the golden jubilee of
00:07:44.000 the college
00:07:45.120 and entrusted ten thousand pesos to his
00:07:47.759 favorite students
00:07:49.360 aliejo labrador
00:07:51.199 gonzalo w gonzalez enrique m fernando
00:07:55.280 amorphina m herrera and vicente abad
00:07:58.560 santos
00:07:59.919 these favorite students of malcolm later
00:08:02.240 rose to prominence either as
00:08:04.319 practitioners or as associate justices
00:08:07.280 of the supreme court
00:08:09.120 justice malcolm
00:08:10.720 wanted this gift to be used in financing
00:08:13.599 a chair in constitutional law a field he
00:08:17.280 distinguished himself in
00:08:19.360 during his lifetime
00:08:22.080 the gift became known as the malcolm
00:08:24.720 trust fund and with it the malcolm
00:08:27.680 professorial chair in constitutional law
00:08:30.479 was established by the ub board of
00:08:32.880 regents in april 1961
00:08:37.120 to provide additional funds not only for
00:08:39.519 the chair
00:08:40.559 but also for other projects of the
00:08:42.479 college of rural
00:08:44.000 the original trustees with the addition
00:08:46.720 of emilio abello
00:08:48.880 deo gracias t reyes
00:08:51.279 alexander sisi and rafael salas
00:08:54.800 later established malcolm trust fund 2.
00:08:59.440 this fund was raised from contributions
00:09:02.720 of friends and admirers of dean malcolm
00:09:06.080 mr washington sisip was designated by
00:09:08.959 the board a successor trustee to
00:09:11.760 attorney alexander sisip who passed away
00:09:15.040 in 1975.
00:09:17.279 the first holder of the chair
00:09:19.839 was florentino of p feliciano who
00:09:23.200 decades later became associate justice
00:09:25.920 of the supreme court in 1986.
00:09:29.519 justice feliciano is a revered name in
00:09:32.000 so far as international law is concerned
00:09:35.040 he co-authored several
00:09:37.040 books on international law with guild
00:09:39.279 professor and renowned scholar
00:09:41.519 in international law
00:09:43.519 yale professor myers mcdougall
00:09:46.480 justice feliciano was also a lecturer at
00:09:48.959 the hague academy of international law
00:09:51.760 these are just a few of his many
00:09:53.600 distinctions
00:09:55.360 chief justice fernando was appointed
00:09:57.360 malcolm professor of constitutional law
00:09:59.519 in december 1975
00:10:02.160 and he held the position for many years
00:10:04.880 his last malcolm lecture
00:10:06.959 which was also the eighth centenary
00:10:09.120 lecture in the supreme court centenary
00:10:11.760 lecture series was held in 2001
00:10:14.959 on the topic a century of
00:10:17.360 constitutionalism
00:10:19.279 the mission as per malcolm j
00:10:22.160 and its fulfillment as per laurel j
00:10:26.079 other selected professorial lecturers
00:10:28.399 also delivered malcolm lectures among
00:10:31.040 them then assistant professor antonio gm
00:10:34.320 lavina who gave a lecture on
00:10:36.519 environmental law
00:10:38.800 also then professor mae lucereno prior
00:10:42.079 to our appointment as associate justice
00:10:44.160 of the supreme court she spoke on the
00:10:46.959 topic autonomy and secession
00:10:49.600 a constitutional law review of the
00:10:51.760 process and content of the grp milf
00:10:55.200 negotiations
00:10:58.079 the trustees of the funds organized the
00:11:00.640 justice george malcolm memorial
00:11:02.800 foundation in 2012.
00:11:05.279 the sec approved its registration in
00:11:07.920 august of 2012. the first set of
00:11:11.040 trustees of the foundation were retired
00:11:13.440 supreme court justices amarfina melencho
00:11:16.720 herrera florentino p feliciano vicente v
00:11:20.800 mendoza reynato espuno
00:11:24.000 washington sisip former u.p college of
00:11:26.959 laudin pacifico agave and then supreme
00:11:30.240 court associate justice antonio t carpio
00:11:34.000 the foundation was formed to foster and
00:11:36.399 promote studies and continuing interest
00:11:39.600 in constitutional law to aid in
00:11:42.160 financing a professorial chair in
00:11:44.399 constitutional law and to administer the
00:11:47.519 malcolm funds
00:11:49.360 the first malcolm lecture of the
00:11:51.440 foundation
00:11:52.639 was delivered on january 31 2013
00:11:56.720 by then former dean raul c pangalangan
00:12:00.320 as holder of the malcolm professorial
00:12:02.560 chair
00:12:03.360 prior to his appointment as judge of the
00:12:05.839 international criminal court in
00:12:08.839 2015 he spoke on the topic
00:12:12.760 counter-majoritarianism and the populist
00:12:15.040 backlash in philippine constitutional
00:12:17.760 law
00:12:18.959 so there mike in a nutshell is a
00:12:20.959 backgrounder on the malcolm foundation
00:12:23.519 the names associated with it sound like
00:12:26.160 a who's who
00:12:27.440 in constitutional law and international
00:12:30.160 law the subjects we are going to deal
00:12:32.560 with this morning
00:12:34.560 aside from the professorial chair it
00:12:36.959 would interest you to know that the
00:12:38.399 foundation also administers the malcolm
00:12:41.360 scholarships given to students who
00:12:43.920 obtain a grade of 1.75 or better in
00:12:47.760 constitutional law and other political
00:12:50.480 law subjects indeed very interesting
00:12:52.560 professor fina especially for those of
00:12:55.040 us who belong to the younger batches
00:12:56.880 listening to the history of the
00:12:58.959 foundation certainly make us proud
00:13:01.839 of our alumni
00:13:03.839 yes indeed so now let us proceed to open
00:13:07.600 today's substantive discussion with
00:13:10.160 remarks from the chair of the malcolm
00:13:12.320 foundation
00:13:13.519 he graduated as class valedictorian [ __ ]
00:13:16.320 laude of class 1975
00:13:19.519 ranked sixth in the bar exams founder of
00:13:22.639 the carpio billiards and cruz law firm
00:13:25.440 professorial lecturer of the up college
00:13:27.839 of law appointed chief presidential
00:13:30.399 legal counsel by then presidential
00:13:32.800 president fidel v ramos and in 2002
00:13:36.639 appointed associate justice of the
00:13:38.480 supreme court at the age of 52
00:13:41.600 where he sat for 18 years achieving the
00:13:44.240 rare feat of having zero backlog during
00:13:46.959 his retirement
00:13:48.800 public servant and champion of
00:13:51.040 philippine sovereign rights ladies and
00:13:53.279 gentlemen let us all welcome
00:13:56.079 supreme court associate justice antonio
00:13:58.800 t carpio
00:14:03.680 good morning to everyone
00:14:05.519 welcome to this webinar on a very
00:14:07.760 important recent decision of the supreme
00:14:10.079 court
00:14:11.440 the pangilinan vs caitanya decision a
00:14:14.480 unanimous supreme court decision penned
00:14:16.959 by justice marvik leonan says that and i
00:14:20.240 quote a treaty cannot amend a statute
00:14:23.440 end of code while at the same time
00:14:25.680 declaring that the treaty is and i code
00:14:28.560 transformed into domestic law by senate
00:14:31.199 concurrence end of code
00:14:33.920 prior philippine jurisprudence says a
00:14:36.079 treaty concurred by the senate has the
00:14:38.160 status of a law
00:14:39.839 in secretary of justice versus lanchon
00:14:42.480 the supreme court declared that and i
00:14:44.399 quote a treaty may repeal a statute and
00:14:47.600 a statute may repeal a treaty and of
00:14:49.680 course
00:14:50.560 the pangilinan decision now says that
00:14:52.720 polar treaty is transformed into
00:14:55.040 domestic law by senate concurrence the
00:14:57.920 concurrent treaty cannot amend or repeal
00:15:00.240 a prior inconsistent law unlike a law
00:15:02.800 passed by congress
00:15:04.639 under the panguilina decision in case of
00:15:07.279 conflict between a prior statute and a
00:15:09.680 later concurred treaty the prior statute
00:15:12.320 prevails
00:15:13.760 thus under the paganilina decision a
00:15:16.160 concurred treaty is not actually
00:15:18.079 transformed into domestic law because by
00:15:20.959 definition a later law amends or repeals
00:15:24.000 a prior inconsistent law if a concurred
00:15:27.279 treaty cannot amend or repeal a prior
00:15:29.600 inconsistent law then it is not
00:15:31.759 transformed into domestic law upon
00:15:34.000 senate concurrence
00:15:36.079 under the panelian decision before the
00:15:38.399 president can enter into a treaty he
00:15:40.720 must now first verify that the treaty
00:15:43.680 does not conflict with existing law
00:15:46.480 if it conflicts with existing law
00:15:50.160 the law must first be amended before the
00:15:52.320 president and signed the treaty
00:15:54.320 otherwise the president will be entering
00:15:56.399 into a treaty in bad faith because he is
00:15:58.959 not authorized to enter in the treaty
00:16:00.959 that conflicts with existing law he is
00:16:03.360 also bound to faithfully execute the law
00:16:05.759 including statutes and he cannot commit
00:16:08.399 that congress an independent and
00:16:10.560 co-equal branch of government well in
00:16:13.680 will in the future amend the existing
00:16:16.079 law
00:16:17.120 it seems that the pangolin decision even
00:16:19.680 prevents the president
00:16:21.360 from stipulating that the treaty will
00:16:23.360 take effect only upon enactment by
00:16:25.680 congress of a mandatory legislation
00:16:29.519 this will back down and weaken the
00:16:31.279 president's power to enter into treaties
00:16:34.160 under the pangilinan decision the
00:16:36.320 president's treaty-making power has
00:16:38.079 considerably been watered down
00:16:41.120 in the united states under madeleine
00:16:43.279 versus texas the u.s senate concurrence
00:16:45.920 can expressively declare a treaty as
00:16:48.199 self-executing making the treaty a part
00:16:51.040 of u.s domestic law thereby amending
00:16:53.600 repealing an inconsistent prior law
00:16:56.639 by holding that the philippine senate's
00:16:58.560 concurrence cannot make the concur
00:17:00.880 treaty prevail over a prior statute the
00:17:04.079 pangolin pangilinan decision deprives
00:17:06.799 the philippine senate the flexibility
00:17:09.359 that the u.s senate enjoys in concurring
00:17:12.160 to a treaty
00:17:13.919 under international law the philippines
00:17:15.679 will be liable under the concurred
00:17:17.599 treaty even if the concurrent treaty
00:17:19.760 conflicts with philippine statute
00:17:22.319 this creates another anomaly a foreigner
00:17:24.799 can enforce the concurred treaty against
00:17:27.119 a filipino citizen in a foreign court on
00:17:30.240 the other hand a filipino citizen cannot
00:17:32.720 enforce the concurrent treaty against a
00:17:34.880 foreigner in a philippine tax treatise
00:17:36.720 concurred by the senate that derogate
00:17:38.720 from the tax code
00:17:40.320 the effectivity and validity of these
00:17:42.240 tax treaties are now in doubt because
00:17:44.559 the to repeal existing provisions of the
00:17:46.960 tax code without congress enacting any a
00:17:50.000 mandatory or repealing law
00:17:52.799 the visiting forces agreement is a
00:17:54.799 concurred treaty which amends the dilg
00:17:57.280 act of 1990 by giving custody of an
00:18:00.559 accused american soldier to u.s
00:18:02.960 authorities from arrest to conviction by
00:18:05.360 the trial court it is only after
00:18:07.679 conviction by the trial court ifa even
00:18:10.480 without any amendment of the dild act
00:18:13.600 the supreme court in lauder versus judge
00:18:15.840 cines havalde
00:18:17.440 with justice leone esponente affirmed
00:18:20.000 the application of the vfa to the louder
00:18:22.480 murder case
00:18:24.400 the supreme court ruled intaniada vs
00:18:26.640 zangara which upheld their accession to
00:18:29.039 the wto that and echoed treaties really
00:18:32.640 limit or restrict the absoluteness of
00:18:34.640 sovereignty
00:18:35.840 by their voluntary act nations may
00:18:37.840 surrender some aspects of their power of
00:18:40.559 their state power in exchange for
00:18:42.240 greater benefits granted by or derived
00:18:44.960 from a conventional path and of course
00:18:47.520 under the panhellenic decision a
00:18:49.679 concurred treaty cannot amend or repeal
00:18:51.840 a prior statute but under tanada a
00:18:54.720 concurred treaty can even surrender
00:18:56.799 aspects of state sovereignty or state
00:18:59.520 power
00:19:01.039 the rule has always been that in case of
00:19:03.280 conflict between international law and
00:19:05.440 the constitution domestic courts will
00:19:07.840 appoint the constitution in short the
00:19:10.080 constitution prevails even as the state
00:19:12.480 may become liable to another state for
00:19:14.799 its violation of international law
00:19:17.360 at the international law level however
00:19:19.520 an international tribunal will always
00:19:21.440 rule that international prevails over
00:19:23.840 domestic law including the constitution
00:19:26.240 of a state
00:19:27.520 this is a recognized dichotomy in
00:19:29.760 international law and domestic law
00:19:32.720 the panelian decision however says that
00:19:35.280 since the withdrawal from the icc has
00:19:37.520 taken effect with the deposit of the
00:19:39.679 instrument of withdrawal and the
00:19:41.360 acknowledgement by the un and the icc of
00:19:43.840 the withdrawal the issue has become moot
00:19:47.120 this means that the domestic court our
00:19:49.039 supreme the panhellenic decision sites
00:19:51.200 with approval the mirror principle that
00:19:53.520 the manner of entering into the treaty
00:19:55.919 should be the same manner in withdrawing
00:19:57.840 from the treaty in short since the
00:19:59.840 treaty can take effect only with the
00:20:01.679 concurrence of the senate then a treaty
00:20:04.080 can only be withdrawn or terminated with
00:20:06.159 the concurrence of the senate
00:20:08.400 notwithstanding this mural principle the
00:20:10.799 pagilian decision says the withdrawal
00:20:13.440 from the icc was effective because it
00:20:15.679 satisfied the requirements of
00:20:17.600 international law for withdrawal from
00:20:19.840 the treaty
00:20:21.200 the permilian decision could have
00:20:22.880 applied the dichotomy between
00:20:24.640 international and domestic law that
00:20:26.720 under international law the withdrawal
00:20:28.480 was effective because it satisfied the
00:20:30.720 requirements of international law but
00:20:32.880 under the mirror principle favorably
00:20:35.039 cited by the pangaelidan musician the
00:20:37.760 withdrawal violates domestic law that is
00:20:39.919 the philippine constitution
00:20:41.679 that would have made the constitution
00:20:43.280 prevail over international law in the
00:20:45.360 domestic sphere
00:20:47.440 and under our democratic and republican
00:20:49.440 system no man is above the law not even
00:20:52.320 the president
00:20:53.600 under our constitutional check and
00:20:55.280 balance system
00:20:56.559 congress enacts a man so repeals the law
00:20:59.200 the president executes the law and the
00:21:01.360 judiciary ensures that acts of congress
00:21:03.440 and the president do not violate the law
00:21:06.000 otherwise the judiciary will declare the
00:21:08.080 acts of the president or congress
00:21:10.000 unconstitutional
00:21:11.600 and there is this constitutional set up
00:21:13.600 the president using only his executive
00:21:16.320 power has no authority to abrogate or
00:21:19.120 repeal a law
00:21:20.640 the pangilinan decision has changed this
00:21:22.720 constitutional set up the president is
00:21:25.200 now above the law because he can
00:21:26.720 unilaterally abrogate or repeal a
00:21:29.120 concurrent treaty
00:21:30.480 which the paneling decision admits as a
00:21:33.280 status of a law and is transformed into
00:21:35.679 domestic law upon senate concurrence
00:21:38.559 if the majority in the senate doesn't
00:21:40.720 make a timely objection before the
00:21:42.799 supreme court or if the termination has
00:21:45.039 taken effect under international law
00:21:47.360 making the issue moved
00:21:50.240 thankfully the pagan decision allows a
00:21:52.720 saving grace the president cannot make
00:21:55.200 such unilateral obligation or
00:21:57.039 termination of a concurred treaty if the
00:21:59.520 senate made its concurrence conditional
00:22:02.480 the president cannot abrogate or
00:22:04.080 terminate the concurred treaty without
00:22:06.000 the senate's consent
00:22:07.679 this conditional concurrence by the
00:22:09.520 senate can be given at the time of the
00:22:11.360 concurrence or even after that returns
00:22:13.919 through a comprehensive resolution
00:22:17.360 after the after the president
00:22:19.280 unilaterally drew from the rome statute
00:22:21.440 creating the icc the senate the senate
00:22:24.640 made all its subsequent concurrence to
00:22:26.720 treaties expressly subject to the
00:22:28.960 condition that any withdrawal by the
00:22:31.200 president from the concurred treaty
00:22:33.120 shall be subject to the same concurrence
00:22:35.200 by the senate
00:22:36.880 now the senate can pass a comprehensive
00:22:39.200 resolution as suggested in the panilinan
00:22:42.080 decision that all priorities can only be
00:22:45.200 withdrawn or terminated by the president
00:22:47.600 upon the same concurrence by the senate
00:22:50.000 prior to such withdrawal
00:22:52.240 this will restore the status quo until
00:22:54.480 the paneling and decision reaffirming
00:22:57.039 that no man is above the law not even
00:22:59.280 the present
00:23:00.480 unfortunately such restoration of a
00:23:02.720 fundamental democratic and republican
00:23:05.600 precept will be due to a mere senate
00:23:08.400 resolution
00:23:09.840 not to an immutable constitutional
00:23:12.000 principle upheld by the supreme court
00:23:15.679 lastly the pangelinan decision ruled
00:23:18.240 that the issues raised by petitioners
00:23:20.240 were actually muted by the withdrawal by
00:23:23.120 the president from the rome statute and
00:23:25.120 the acceptance but the petitions are
00:23:28.159 controversy that impels this court's
00:23:30.320 review and of course thus while the
00:23:32.559 courts still discuss the issues
00:23:34.080 presented most of the discussions in the
00:23:36.640 pagilina decision including on whether a
00:23:39.520 treaty may repeal a statute and a
00:23:41.440 statute medical statute are at best
00:23:44.240 orbiter
00:23:45.840 i will end my remarks here as i do not
00:23:48.159 want to preempt our distinguished
00:23:49.600 speakers
00:23:50.640 i just want to add the intellectual
00:23:52.400 appetite of everyone to the exciting
00:23:54.799 topic that we will be hearing from our
00:23:56.960 distinguished speakers
00:23:58.799 thank you and welcome everyone
00:24:02.400 thank you very much justice scarpio uh
00:24:05.120 your remarks certainly provide the
00:24:06.880 important context of today's malcolm
00:24:08.960 lecture and the ideas that we should
00:24:11.440 keep in mind as we listen to the
00:24:13.039 presentations of our speakers and on
00:24:15.360 that note we introduce our first speaker
00:24:18.320 who will give the background of the case
00:24:20.400 he is assistant professor andrei
00:24:22.400 palacios who teaches international law
00:24:25.120 at the uk college of law he graduated
00:24:27.520 from uk law in 1998 and placed fifth in
00:24:30.799 the bar examinations he holds a master's
00:24:33.760 degree in public committee of the
00:24:35.600 integrated bar of the philippines which
00:24:37.600 was one of the petitioners in one of the
00:24:39.520 cases subject of the supreme court
00:24:41.840 decision we are discussing today he is
00:24:44.320 also the executive director of the asean
00:24:46.799 law institute previously he was a senior
00:24:49.840 lawyer at the world bank in washington
00:24:51.600 dc and assistant to the philippine
00:24:53.840 permanent representative to the world
00:24:55.520 trade organization in geneva he also
00:24:58.400 serves as legal expert for
00:25:00.000 infrastructure projects funded by the
00:25:02.159 asian development bank and advises
00:25:04.480 government and private entities on tpp's
00:25:07.279 and infrastructure projects previously
00:25:09.600 he was the undersecretary heading the
00:25:11.600 ppp center of the philippines professor
00:25:14.080 palacios you have the floor
00:25:18.480 thank you very much professor mike
00:25:20.880 may be allowed to share my screen
00:25:29.600 uh good morning everyone i am honored to
00:25:32.720 give the background of this
00:25:34.960 important decision by the philippine
00:25:37.120 supreme court
00:25:38.400 the decision involves the withdrawal by
00:25:40.400 the republic of the philippines as a
00:25:42.640 party to the treaty known as the rome
00:25:45.279 statute which established the
00:25:47.360 international criminal court
00:25:49.840 the withdrawal appears to be a simple
00:25:52.000 event a piece of paper called the notice
00:25:54.240 of withdrawal was delivered by a person
00:25:56.720 representing the philippine government
00:25:58.720 to another person representing the
00:26:00.640 united nations secretary general a piece
00:26:03.120 of paper delivered done a very brief
00:26:06.720 event
00:26:07.600 however this brief event should be seen
00:26:09.919 as part of a lengthier process that
00:26:12.080 occurred simultaneously on two different
00:26:14.880 planes
00:26:16.000 in two different dimensions into
00:26:18.720 separate and distinct legal systems
00:26:22.159 in two parallel universes if you will
00:26:26.559 the delivery of the notice was part of
00:26:29.360 the withdrawal process under philippine
00:26:31.520 law
00:26:32.320 the significance and effects of the
00:26:34.240 withdrawal under the philippine legal
00:26:35.679 system will be examined by up law
00:26:38.080 professor dante gatmaitan who is an
00:26:40.080 expert in philippine constitutional law
00:26:43.919 simultaneously the delivery of the
00:26:46.000 notice was also part of the withdrawal
00:26:48.559 process under international law
00:26:51.120 the significance and effects of the
00:26:52.960 withdrawal under the international legal
00:26:55.120 system will be examined by notre dame
00:26:58.000 notre dame law professor dr diane
00:26:59.919 dicerto who is an expert in
00:27:02.240 international law
00:27:04.400 hopefully this brief background the
00:27:07.039 context of the case will allow us to
00:27:09.440 have a greater appreciation for the
00:27:11.520 insights of our two legal experts
00:27:14.880 the treaty from which the philippines
00:27:17.120 withdrew is called the rome statute
00:27:20.399 so-called because it was in rome where
00:27:22.159 the treaty the text of the treaty was
00:27:24.480 negotiated and adopted during an
00:27:26.720 international diplomatic conference held
00:27:28.960 in 1998.
00:27:31.279 from the international law perspective
00:27:33.520 or in the international legal system the
00:27:35.919 rome treaty is not the first to define
00:27:39.279 which acts are to be considered the most
00:27:42.000 heinous crimes under international law
00:27:45.440 even before the 1900s violations of the
00:27:48.960 laws and customs of war or war crimes
00:27:51.840 were already considered crimes under
00:27:54.000 customary international law
00:27:56.720 as early as the 1940s crimes against
00:27:59.360 humanity and the crime of aggression
00:28:01.679 were already considered crimes under
00:28:03.279 customary international law
00:28:05.360 in 1948 the genocide convention defined
00:28:08.159 the crime of genocide under
00:28:09.919 international law
00:28:12.320 also the rome treaty is not the first to
00:28:15.520 require the punishment of the most
00:28:17.600 heinous international crimes
00:28:19.760 the four geneva conventions of 1949
00:28:22.640 regulating the conduct of warfare
00:28:24.960 as well as their predecessor conventions
00:28:27.679 require states to penalize and punish
00:28:30.559 war crimes called grave breaches of the
00:28:33.440 said conventions
00:28:35.840 additionally the rome treaty was not the
00:28:39.039 first to establish an international
00:28:41.679 tribunal
00:28:42.880 to fight impunity
00:28:44.720 international agreement
00:28:46.559 to establish the international military
00:28:50.000 tribunal
00:28:51.600 this tribunal sat in nuremberg to try
00:28:54.240 high-ranking government and military
00:28:56.159 officials of the german state
00:28:58.399 the following year in 1946 the allied
00:29:01.760 states by military proclamation
00:29:04.159 established a similar tribunal for the
00:29:06.480 far east
00:29:07.760 this tribunal sat in tokyo to try
00:29:10.000 high-ranking government and military
00:29:12.080 officials of the japanese state
00:29:14.960 both were military tribunals created by
00:29:18.000 states that prevailed in an armed
00:29:19.520 conflict for the limited purpose of
00:29:21.679 punishing war criminals in the defeated
00:29:24.840 states
00:29:26.480 almost 50 years later in 1993 the u.n
00:29:30.399 security council established the
00:29:31.919 international criminal tribunal for the
00:29:34.240 former yugoslavia
00:29:36.080 this tribunal sat in the hague to try
00:29:38.159 individuals who committed international
00:29:40.080 crimes in the former yugoslavia during
00:29:43.039 the conflict involving serbia croatia
00:29:45.600 and bosnia-herzegovina
00:29:47.760 the following year in 1994 the u.n
00:29:50.799 security council established a
00:29:52.240 similarities
00:29:53.679 both were ad hoc tribunals
00:29:55.919 created by the u.n security council to
00:29:58.000 punish crimes committed during specific
00:30:00.399 armed conflicts
00:30:02.080 subsequently
00:30:03.919 the u.n entered into international
00:30:05.679 agreements with sierra leone in 2002 and
00:30:08.399 with cambodia in 2003 to create
00:30:11.399 internationalized courts for
00:30:13.360 international crimes committed during
00:30:14.960 the civil war in cambodia from the 1970s
00:30:17.200 from the 1970s and in sierra leone from
00:30:19.679 the 1990s
00:30:22.320 in 1998 a diplomatic conference was held
00:30:25.200 in rome where the text of the rome
00:30:26.799 statute was adopted by 120 states
00:30:30.159 the treaty was open for signature and
00:30:32.159 ratification by states
00:30:34.240 the philippine diplomatic representative
00:30:36.080 signed the treaty on behalf of the
00:30:37.520 philippine state in december year 2000
00:30:40.559 three days before the deadline for
00:30:42.880 states to sign the treaty
00:30:45.679 a state smear signature did my did not
00:30:48.399 make that state a party to the rome
00:30:50.480 statute thus the philippines did not
00:30:52.640 become a party to the treaty by its mere
00:30:55.120 signature in year 2000
00:30:57.200 the philippines became a party over a
00:30:59.200 decade later in year 2011. nonetheless
00:31:03.200 the philippines was not yet a party to
00:31:05.279 the rome statute the philippines as
00:31:07.760 signatory
00:31:09.440 already incurred certain obligations
00:31:11.519 under international law the vienna
00:31:13.360 convention the law of treaties obligated
00:31:15.279 the philippines
00:31:16.559 while still a signatory and not yet a
00:31:18.559 party to their own statute to refrain
00:31:20.799 from performing acts that would defeat
00:31:22.960 the object and purpose of the treaty
00:31:27.200 in 2002 the rome statute entered into
00:31:30.799 force and the international criminal
00:31:32.799 court was created the treaty entered
00:31:35.279 into force after the 60th state
00:31:37.600 deposited its instrument of ratification
00:31:41.440 notwithstanding the entry into force of
00:31:43.279 the rome statute in 2002 the philippines
00:31:46.320 did not become a party and the treaty
00:31:48.640 did not yet enter into force in respect
00:31:51.760 of the philippines until the philippines
00:31:54.159 deposited its intimate ratification in
00:31:56.240 year 2011.
00:31:58.720 from the philippine law perspective or
00:32:00.720 in the philippine legal system the entry
00:32:03.039 into force of the rome statute in
00:32:04.720 respect of the philippines resulted in
00:32:07.039 the domestication of the treaty rules
00:32:10.000 meaning
00:32:10.960 their transformation into philippine
00:32:13.440 national legal rules that were part of
00:32:16.000 the law of the land of the philippines
00:32:19.039 as part of the law of the land or as
00:32:20.960 philippine legal rules the provisions of
00:32:23.440 the rome statute created philippine
00:32:25.279 legal rights as well as philippine legal
00:32:27.760 obligations that could be invoked before
00:32:30.480 and enforced by philippine courts and
00:32:33.760 administrative agencies
00:32:36.159 however from the philippine law
00:32:37.919 perspective
00:32:39.120 the domesticated rome treaty rules were
00:32:41.600 not the first to define war crimes
00:32:44.799 crimes against humanity and genocide as
00:32:47.919 crimes under philippine law
00:32:50.320 as early as 1935 the constitution of the
00:32:53.440 philippine commonwealth adopted and i
00:32:55.519 quote
00:32:56.399 the generally accepted principles of
00:32:58.720 international law as part of the law of
00:33:01.200 the nation end of quote thus
00:33:03.919 even in the 1930s customary
00:33:06.320 international law defining war crimes
00:33:08.640 and crimes against humanity
00:33:10.559 had already been domesticated and made
00:33:12.799 part of philippine law
00:33:14.640 by way of incorporation
00:33:17.840 in 1949 the philippine supreme court
00:33:20.399 affirmed that customary international
00:33:23.120 law prohibiting the crime of aggression
00:33:25.840 war crimes and crimes against humanity
00:33:28.720 were already part of philippine law and
00:33:30.640 could be the basis for a criminal
00:33:32.480 prosecution before a philippine court
00:33:35.440 this was the case of lieutenant general
00:33:37.279 kuroda commanding general of the japan
00:33:39.200 domesticated rome treaty rules were not
00:33:42.720 the first to provide for the punishment
00:33:45.279 of war crimes crimes against humanity
00:33:47.840 and genocide as crimes under
00:33:49.840 international law
00:33:51.679 in 2009 the philippine congress enacted
00:33:54.480 republic act number
00:33:56.039 9851 otherwise known as
00:33:58.880 the philippine act on crimes against
00:34:00.880 international humanitarian law
00:34:03.039 genocide and other crimes against
00:34:05.200 humanity
00:34:06.399 the statute declared the policy of the
00:34:08.639 philippine state too and i quote
00:34:11.199 exercise its criminal jurisdiction over
00:34:13.520 those responsible for international
00:34:16.239 crimes and of quote
00:34:18.159 the philippine statute imposed penalties
00:34:20.239 of imprisonment for up to regulation
00:34:22.399 perpetua a fine in an amount up to one
00:34:25.359 million pesos and for feature of the
00:34:27.918 proceeds of the crimes
00:34:30.239 the statute also gave regional trial
00:34:32.480 courts subject matter jurisdiction over
00:34:34.800 war crimes crimes against humanity and
00:34:37.280 genocide as these are defined in the
00:34:39.839 philippine statute
00:34:42.399 two years after the enactment of ra9851
00:34:46.079 in 2011 the philippine president signed
00:34:48.560 the instrument of ratification of the
00:34:50.159 rome statute
00:34:51.520 the president then transmitted the same
00:34:53.119 to the philippine senate for concurrence
00:34:54.719 as required under section 21 article 7
00:34:57.440 of the constitution
00:34:59.040 at least two-thirds of all the members
00:35:00.720 of the senate adopted is a resolution
00:35:03.280 concurring in the president's
00:35:04.560 ratification
00:35:06.480 after compliance with the requirement
00:35:08.240 under philippine law the executive
00:35:10.400 department deposited the instrument of
00:35:12.480 ratification with the un secretary
00:35:14.960 general in compliance with the
00:35:16.640 requirement of the rome statute
00:35:19.119 in november 2011 the rome statute
00:35:21.760 entered into force for the philippines
00:35:23.760 and the philippines became a party to
00:35:25.760 the treaty
00:35:27.839 less than seven years later on march 15
00:35:31.680 2018
00:35:34.160 the philippine president announced that
00:35:35.760 the republic of the philippines would
00:35:37.359 withdraw as a party to the rome statute
00:35:40.880 under article 127 of the treaty a state
00:35:44.480 may withdraw from the treaty or the
00:35:46.640 philippine diplomatic representative
00:35:48.320 delivered their written notification of
00:35:50.000 withdrawal to the un secretary general's
00:35:52.480 representative on march 17 the u.n
00:35:55.119 secretary general received the
00:35:56.400 withdrawal notice under article 127 of
00:35:59.440 the treaty the withdrawal was to take
00:36:01.680 effect and a quote one year after the
00:36:04.400 date of receipt of the notification end
00:36:07.119 of quote
00:36:08.960 on may 16
00:36:10.400 2018
00:36:12.079 two months after delivery of the
00:36:13.920 withdrawal notice in new york six
00:36:15.920 senators filed the first petition
00:36:17.760 entitled cayetano versus sorry paglian
00:36:19.920 universitano
00:36:21.280 the petition sought to invalidate the
00:36:23.280 executive department's action of
00:36:25.200 delivering the withdrawal notice
00:36:27.680 less than a month later on june 7 the
00:36:30.000 philippine coalition for the
00:36:31.680 international criminal court and certain
00:36:33.520 individuals filed the second petition
00:36:36.160 praying for the same thing
00:36:37.839 two months later on august 1314 the
00:36:40.400 integrated bar of the philippines filed
00:36:42.160 the third petition
00:36:43.680 the three cases were consolidated and
00:36:45.440 oral arguments were held from august to
00:36:48.000 october 2018.
00:36:50.800 on march 17 20 used to be a party to the
00:36:53.839 rome statute
00:36:55.520 on march 16 of this year one
00:36:58.240 the philippine supreme court issued a
00:36:59.920 press release stating that the court had
00:37:02.079 dismissed the three petitions for being
00:37:04.560 moot and academic four months later on
00:37:07.040 july 21 the supreme court released a
00:37:09.599 copy of the decision that we are now
00:37:11.920 examining thank you very much
00:37:19.839 thank you professor palacios
00:37:23.680 that is a good starting point fina
00:37:27.599 yeah i'm trying to open my video sorry
00:37:32.320 okay thank you professor palacios that
00:37:35.200 is a good starting point in unpacking
00:37:37.359 the many aspects of the decision
00:37:39.760 one important dimension of the ruling is
00:37:42.160 its impact and implication on
00:37:44.320 constitutional law
00:37:46.400 what are the implications of this
00:37:48.800 decision in public law
00:37:52.000 our next speaker will present a critique
00:37:54.720 of pangolin and pangilinan versus
00:37:56.880 cayetano to show why these spaces for
00:38:00.000 dismissing the case are flawed and why
00:38:03.200 this decision may have a very little
00:38:05.440 impact on constitutional law
00:38:07.920 our next speaker professor dantegat
00:38:10.320 maitan
00:38:11.359 is a scholar and a professor of
00:38:13.440 constitutional law
00:38:15.200 legal method and local government law
00:38:18.480 his research interests include
00:38:21.400 constitutional amendments the
00:38:23.839 interaction of law and politics and
00:38:26.240 comparative constitutionalism
00:38:29.520 as a scholar professor gatmaitan has
00:38:32.160 published his work on a wide range of
00:38:34.960 issues including books and articles on
00:38:37.200 the environment
00:38:38.960 gender the judiciary and the
00:38:41.599 intersection of law and politics he has
00:38:44.480 authored books in constitutional law
00:38:47.119 local government law legal method local
00:38:50.720 environment
00:38:52.079 local environmental governance among
00:38:54.400 others
00:38:55.599 other books professor gottmaitan has
00:38:57.760 authored include legal method essentials
00:39:01.119 local government law and jurisprudence
00:39:03.599 and constitutional law in the
00:39:05.280 philippines
00:39:07.520 government structure
00:39:09.280 furthermore professor gatmaitan's
00:39:11.440 numerous articles have also been
00:39:13.440 published by both local
00:39:15.440 and international journals a collection
00:39:18.320 of scholarly work can be found in the
00:39:21.119 book
00:39:22.400 more equal than others constitutional
00:39:24.640 law and politics and under class public
00:39:27.680 interest law practice perspectives
00:39:31.280 professor gatmaitan graduated from the
00:39:33.760 u.p college of law in 1991.
00:39:37.119 in 1995 he earned a master of studies in
00:39:40.400 environmental law from vermont law
00:39:42.800 school he graduated as [ __ ] laude in 1996
00:39:47.599 he earned his master of laws at the
00:39:49.680 university of california
00:39:51.920 los angeles
00:39:53.359 ladies and gentlemen may i present
00:39:56.000 professor dante
00:40:04.000 good morning
00:40:06.240 good morning to our guests the dean and
00:40:08.560 the faculty of the u.p college of law
00:40:11.040 our students
00:40:14.400 and guests thank you to
00:40:16.240 the justice george malcolm foundation
00:40:18.960 for
00:40:20.330 [Music]
00:40:21.839 organizing this event and to the
00:40:23.440 institute of international legal studies
00:40:26.480 for making sure it happens
00:40:28.640 today i'm going to talk about an aspect
00:40:31.040 of the
00:40:32.240 bangladina versus kaitano case and this
00:40:34.880 would be the grounds
00:40:37.280 for the dismissal
00:40:40.319 of the case and here i'm arguing that
00:40:43.119 these grounds are are
00:40:45.599 both old and new
00:40:47.839 that's why i call them variant
00:40:50.839 technicalities i think the court
00:40:52.880 fashioned
00:40:54.800 um
00:40:56.960 new technicalities uh so that it will
00:40:59.599 have a reason to dismiss the case
00:41:03.280 now
00:41:05.760 i will talk about the two grounds
00:41:08.319 um
00:41:09.440 which were cited by the supreme court
00:41:11.280 one is the standing of the petitioners
00:41:14.240 the supreme court saying that they did
00:41:15.839 not have standing and mootness
00:41:19.200 and of course in both cases i argue and
00:41:21.440 i show
00:41:22.400 how the court might have gotten it wrong
00:41:29.839 these are
00:41:32.880 my takeaway is from the case i have two
00:41:34.800 main ones okay the first one
00:41:38.160 is that this is a win for president uh
00:41:41.359 duterte
00:41:42.880 what he wanted was
00:41:44.800 a way out of the room statute and that's
00:41:46.800 exactly what he got
00:41:48.480 okay
00:41:49.359 now the media when the decision came out
00:41:52.079 uh
00:41:52.960 kept focusing its attention on those
00:41:55.200 passages from the decision that suggests
00:41:57.760 that the
00:41:59.280 philippines was still bound to cooperate
00:42:01.760 with the icc
00:42:03.599 despite the withdrawal
00:42:05.760 from the roman statute
00:42:07.680 okay and it's a win for the territory
00:42:09.599 because that's not even
00:42:11.920 a ruling of the supreme court
00:42:14.640 that is found in the wrong statute
00:42:16.640 itself as i'll
00:42:18.640 show you in article 127 on withdrawal
00:42:22.319 from the statute
00:42:23.760 and here the supreme court
00:42:27.040 simply
00:42:29.040 reiterates what the statute says
00:42:32.000 and that is that a state shall not be
00:42:34.000 discharged
00:42:35.599 uh from its obligations
00:42:39.920 while it was a party to the statute and
00:42:44.319 the withdrawal should not affect
00:42:46.240 any cooperation with the court
00:42:52.319 so it's not that
00:42:54.160 the supreme court
00:42:55.839 continued to mandate
00:42:58.880 cooperation from the national government
00:43:01.680 it's already stated in their own statute
00:43:04.000 so it's nothing new
00:43:08.640 the second takeaway that i have
00:43:11.520 is this may not be
00:43:14.319 valuable as a constitutional law case or
00:43:16.960 a
00:43:17.920 public international case because
00:43:21.040 the case was dismissed on technicalities
00:43:23.920 so it's a great case for legal method
00:43:28.319 because we get the chance to analyze
00:43:31.760 the rule understanding
00:43:34.000 for legislators
00:43:35.440 we also have a chance to analyze
00:43:37.920 mootness and whether it was properly
00:43:40.240 applied
00:43:41.359 by the supreme court in this case
00:43:51.680 so let's look at the first ground for
00:43:53.680 the dismissal of the case and that has
00:43:55.200 to do with standing and before
00:43:57.280 pangilinan
00:43:58.960 the rule on standing for legislators was
00:44:01.440 very very clear
00:44:03.520 a legislator had standing to challenge
00:44:07.359 uh
00:44:08.240 you know an act of the executive is
00:44:10.160 amounted to a user patient of
00:44:12.319 legislative powers
00:44:14.800 okay
00:44:15.680 uh
00:44:16.720 and in another case the supreme court
00:44:18.480 said
00:44:19.359 a member of the house of representatives
00:44:21.440 standing to maintain and violate the
00:44:24.240 prerogative powers and privileges vested
00:44:27.040 by the constitution in his office
00:44:29.520 so if a legislator felt
00:44:31.760 that his or her prerogatives were being
00:44:33.760 usurped by another branch of government
00:44:36.000 that confers standing
00:44:38.960 on that legislator
00:44:42.720 in a more recent case the supreme court
00:44:44.720 reiterates this rule it's an old one
00:44:48.800 and it says that the legislators will
00:44:51.359 have legal standing to see to it that
00:44:53.040 the prerogative powers and privileges
00:44:55.040 vested by the constitution
00:44:56.800 in their office remain in violate
00:45:00.560 so they are allowed to question official
00:45:02.560 actions which in their minds infringes
00:45:05.119 on their prerogatives as legislators
00:45:07.760 which i think
00:45:09.200 applies clearly to this case because the
00:45:11.200 petitioners were arguing that a
00:45:13.440 unilateral withdrawal from their own
00:45:15.200 statute cannot be constitutionally done
00:45:18.560 because uh concurrence
00:45:22.240 of the senate is required
00:45:27.839 however this is the the ruling that we
00:45:29.839 get from the supreme court
00:45:31.440 and this is why i called the variant
00:45:33.359 because and these are this is a quote
00:45:35.280 from the decision itself
00:45:36.960 the supreme court said that they
00:45:39.280 the senate didn't enforce a senate
00:45:41.520 resolution
00:45:44.240 that expressed its position
00:45:47.040 on the issue
00:45:50.480 and for the first time i think
00:45:52.720 uh the supreme court has ruled that an
00:45:54.640 action by the senate was necessary
00:45:56.960 before coming to this court
00:45:59.280 which i think is unusual because
00:46:01.760 it has always been
00:46:04.240 um
00:46:06.240 an individual senator who can do this
00:46:08.640 and now the supreme court has tied
00:46:10.480 standing to a an institutional position
00:46:13.680 to be made by
00:46:15.760 a chamber of congress
00:46:21.599 again
00:46:22.880 quoting from the court
00:46:26.079 it says the court says that the senate
00:46:28.079 did not
00:46:29.839 pass that resolution expressing its
00:46:32.000 position
00:46:33.119 that concurrence is required before the
00:46:35.839 withdrawal
00:46:37.280 from the room statute can be validly
00:46:39.119 made for petitioners to bring this case
00:46:41.520 to court
00:46:43.280 but the fact that the senate did not act
00:46:45.359 on
00:46:46.480 um
00:46:48.240 that resolution according to the court
00:46:49.760 forecloses
00:46:51.440 the institutions uh or the senator's
00:46:55.440 chances of bringing this case to court
00:46:58.800 and that bothers me a lot because that's
00:47:00.800 not what i learned
00:47:04.000 in law school
00:47:06.560 what's wrong
00:47:09.760 with what the court just said
00:47:12.079 the institutional position of the senate
00:47:16.400 does not confirm standing
00:47:19.200 it does it
00:47:20.400 as i explained earlier it is when any
00:47:25.119 senator feels
00:47:27.280 that their prerogatives are being
00:47:28.960 destroyed by another branch of
00:47:30.400 government
00:47:31.280 that gives them standing
00:47:33.280 when they're trying to protect their
00:47:34.720 office
00:47:35.680 that gives them standing it's not the
00:47:38.240 the senate as an institution so
00:47:40.559 whether the senate
00:47:41.920 as an institution has a position on the
00:47:44.000 issue or not then it shouldn't really
00:47:45.760 matter
00:47:48.640 next
00:47:49.680 the supreme court seems to be telling us
00:47:52.559 that the constitutionality
00:47:55.119 of the act of the president
00:47:57.440 is determined by the senate by refusing
00:48:00.160 to act on the resolution
00:48:03.119 by refusing to pass it
00:48:05.200 then apparently the senate has no
00:48:08.079 problem with it and therefore
00:48:10.240 it's constitutional
00:48:13.200 that's also wrong
00:48:15.040 and this approach by the supreme court
00:48:16.720 actually gives
00:48:18.960 um legislators
00:48:21.760 or it's a
00:48:23.839 chamber of congress dominated by the
00:48:25.920 president's allies
00:48:27.440 to prevent dissent by proposing
00:48:31.040 institutional positions on an issue and
00:48:33.359 then refusing to act on it
00:48:35.680 it therefore prevents anyone from going
00:48:38.480 to court to challenge
00:48:40.000 the act of the president
00:48:42.160 because as an institution they will say
00:48:44.079 well the senate doesn't see anything
00:48:45.839 wrong with it or the house of
00:48:47.280 representatives doesn't see anything
00:48:48.960 wrong with it therefore
00:48:52.079 we're not going to go to court and
00:48:54.000 according to the supreme court therefore
00:48:56.079 you don't have standing
00:48:58.800 i think that's just
00:49:00.480 messed up
00:49:06.400 now
00:49:07.520 every first year student knows
00:49:09.599 that there is a nuclear option available
00:49:12.400 to constitutional litigators
00:49:14.480 and that is the transcendental
00:49:16.319 importance um
00:49:19.040 argument
00:49:21.200 but again
00:49:22.319 this is what the supreme court says here
00:49:24.480 that the petitioners did raise
00:49:26.480 transcendental importance
00:49:28.559 but
00:49:29.970 [Music]
00:49:31.119 the case does not involve funds or
00:49:33.119 assets
00:49:36.000 neither was there any expressed
00:49:37.520 disregard of a constitutional
00:49:39.599 or statutory prohibition
00:49:43.599 and
00:49:44.880 uh petitioners fail to show that no
00:49:47.200 other party has a more direct personal
00:49:49.440 and material interest
00:49:52.960 that's amazing because i think every
00:49:54.319 word in that sentence is wrong
00:49:57.040 with all due respect
00:49:58.110 [Music]
00:50:01.040 the court adds
00:50:03.119 that the alleged transcendental
00:50:04.880 importance of the issues will be better
00:50:06.800 served when there are actual cases with
00:50:09.280 proper parties
00:50:11.520 suffering
00:50:12.400 and an imminent injury
00:50:16.000 for the court
00:50:17.280 to hear the case according to pangalina
00:50:19.359 and virtus cayetano there has to be a
00:50:21.599 proper party
00:50:25.040 and that just makes things worse
00:50:28.160 i'm offended by the
00:50:30.240 the decision
00:50:31.599 first of all this is not a taxpayer suit
00:50:34.800 in which case there's no reason
00:50:37.280 for anyone to invoke
00:50:39.119 the illegal disbursement of public funds
00:50:42.079 because that is necessary when you're
00:50:43.839 arguing
00:50:45.680 for standing as a taxpayer
00:50:50.319 but that's not what you're doing
00:50:54.000 when you're
00:50:56.240 arguing transcendental importance
00:50:59.440 when you're doing that you're admitting
00:51:01.119 you don't really have standing
00:51:03.119 but the issues are so important
00:51:05.839 that you're asking the court to hear the
00:51:07.760 case anyway
00:51:10.160 when you argue there is an illegal
00:51:12.000 disbursement of public funds what you're
00:51:13.839 actually saying is i am standing
00:51:16.559 as a taxpayer
00:51:19.520 and then the court says that
00:51:21.599 there's
00:51:23.119 no actual injury
00:51:24.880 or there's no there's no
00:51:27.040 uh violation of any constitutional
00:51:29.040 prohibition i think
00:51:31.839 i think there is because the the
00:51:33.440 senators are arguing
00:51:35.520 that their concurrence are is needed
00:51:38.480 before withdrawal from the wrong statute
00:51:40.319 can be validly done
00:51:42.480 so there is a constitutional prohibition
00:51:46.400 and the court
00:51:48.240 is looking for actual imminent injury
00:51:52.480 which is not necessary in a case
00:51:55.359 where you're invoking transcendental
00:51:57.839 importance
00:51:59.520 the beauty of that argument is that
00:52:02.319 you're asking the court to set aside
00:52:05.440 a technicality which is standing in this
00:52:07.839 jurisdiction
00:52:09.200 because of the importance of the issues
00:52:11.119 and there is um
00:52:12.880 an array an avalanche if you will of
00:52:15.599 cases
00:52:16.960 saying exactly that
00:52:19.760 that because of the importance of the
00:52:21.280 issue we are relaxing the rules and
00:52:22.960 standing
00:52:25.200 you don't have to have standing
00:52:28.079 it's just a technicality anyway let's
00:52:30.400 let's let's deal with this issue because
00:52:32.319 it requires resolution
00:52:34.480 from the court
00:52:40.960 and just to be clear
00:52:43.440 this is the point i'm trying to make
00:52:45.200 transcendental force
00:52:47.200 importance
00:52:48.480 dispenses with the standing requirement
00:52:52.079 so you don't
00:52:54.400 you don't
00:52:57.040 decide
00:52:58.559 if there's transcendental importance
00:53:01.200 by looking for
00:53:03.359 standing
00:53:04.640 then you don't say
00:53:06.640 okay it's important but show me someone
00:53:08.880 who has a direct interest in this case
00:53:10.720 someone who is directly injured
00:53:13.839 supreme court is contradicting
00:53:15.839 itself
00:53:21.040 let us go to um
00:53:24.000 the second ground
00:53:25.920 for the dismissal of the case and that
00:53:27.440 is mootness
00:53:28.960 and here what the supreme court said was
00:53:30.960 that all the acts
00:53:32.400 that are necessary for the withdrawal
00:53:34.400 from the rome statute have been
00:53:36.240 consummated and therefore there's
00:53:37.680 nothing left to do because
00:53:40.240 the philippines has withdrawn
00:53:42.880 uh from the rome statute
00:53:46.160 and and to me that's a problem because i
00:53:48.480 think
00:53:50.160 um
00:53:52.720 the acceptance of the iccfd they
00:53:54.880 withdrawal cannot be considered a
00:53:57.359 supervening event
00:53:59.040 that renders a case
00:54:01.520 it's not because there's an argument
00:54:03.839 that it was unconstitutionally done
00:54:06.559 so if the withdrawal was
00:54:07.680 unconstitutional then nothing could have
00:54:09.839 been validly transmitted to the icc and
00:54:12.559 icc could not have validly
00:54:15.200 accepted anything and the withdrawal
00:54:18.400 was not validly done
00:54:20.400 therefore the case is not
00:54:22.480 moved
00:54:23.440 and i like in this this case
00:54:27.599 uh you know those cases that we have
00:54:29.839 where an unqualified
00:54:32.319 aspire in the public office is elected
00:54:35.440 say if you were
00:54:37.280 a fugitive from justice you are
00:54:38.880 disqualified
00:54:40.319 and then because of your charm and
00:54:42.640 charisma and political machinery you win
00:54:45.839 the supreme court doesn't say well the
00:54:48.319 people have spoken and there's nothing
00:54:49.920 else for us to do the supreme court
00:54:53.599 will say as it has
00:54:55.599 that it doesn't matter how many votes
00:54:56.960 you got if you're disqualified you're
00:54:58.880 disqualified and
00:55:00.720 you were never validly elected
00:55:04.319 so there even if the people spoke you
00:55:06.559 know the voters
00:55:07.920 uh spoke it doesn't resolve the issue if
00:55:11.599 you're disqualified you cannot have you
00:55:13.280 could not have been validly elected into
00:55:15.760 office
00:55:17.520 okay so the same way
00:55:19.680 an unconstitutional act on the part of
00:55:21.520 the president could not have
00:55:23.520 uh
00:55:24.480 rendered the case smooth
00:55:29.680 and even if the case was moved every
00:55:31.599 first year law student knows that there
00:55:33.040 are exceptions
00:55:34.960 to the moodness doctrine
00:55:37.359 and the supreme court typically gives us
00:55:39.520 four exceptions
00:55:41.200 and uh
00:55:42.400 here it's listed in the vid versus
00:55:43.760 mojave
00:55:45.200 now and if we look through them i think
00:55:51.119 we satisfy the exceptions first of all
00:55:53.760 there's a great violation of the
00:55:55.040 constitution
00:55:56.160 and that's what the senators were saying
00:55:57.760 you violated the constitution because
00:55:59.359 you require concurrence from two thirds
00:56:01.920 of the set
00:56:04.720 let's skip to the second one because
00:56:06.160 i'll discuss it in uh later
00:56:08.240 and then the chord says there's an
00:56:09.839 exception when constitutional issues
00:56:11.680 race requires formulation of controlling
00:56:13.680 principles
00:56:15.040 which i think happened here
00:56:17.599 because despite dismissing the case the
00:56:19.200 court went on
00:56:21.040 for future guidance of litigants to lay
00:56:24.000 down rules on withdrawals from
00:56:27.000 [Music]
00:56:28.640 treaties and other international
00:56:29.920 agreements
00:56:31.760 that's the
00:56:33.040 because we've entered into a whole lot
00:56:34.799 of treaties
00:56:36.319 so it can happen again so on those three
00:56:38.799 grounds it's clear that even if the case
00:56:40.960 was smooth
00:56:42.079 the court could have decided the keys
00:56:46.000 and on that second
00:56:48.079 exception
00:56:49.359 uh the supreme court you can satisfy the
00:56:51.200 second exception if there is some
00:56:53.200 perceived benefit to the public
00:56:56.240 and um in one case the supreme court
00:56:59.440 said there's no hard and fast rule
00:57:01.839 in determining whether case uh involves
00:57:04.079 paramount public interest
00:57:06.160 but uh there should be some perceivable
00:57:09.040 benefit to the public
00:57:11.280 which demands the court to proceed with
00:57:13.280 the resolution of a case that is
00:57:14.960 otherwise
00:57:16.079 booked some perceivable benefit to the
00:57:18.640 public
00:57:20.240 and are there perceivable benefits to
00:57:22.319 the public in this case i would say so
00:57:27.040 uh one is the proper interpretation of
00:57:28.720 the constitution
00:57:31.359 i think we all ought to know
00:57:34.000 um
00:57:34.490 [Music]
00:57:37.040 what the rules are when it comes to
00:57:38.480 withdrawing from treaties and other
00:57:40.000 international
00:57:41.280 agreements that by itself is a benefit
00:57:46.240 that we can all enjoy
00:57:48.400 and and
00:57:49.920 secondly of course the the withdrawal
00:57:51.839 from the
00:57:53.280 from their own statute
00:57:55.200 affects the uh
00:57:58.400 the remedies available to the thousands
00:58:00.480 of victims
00:58:01.839 of extrajudicial killings that have um
00:58:05.520 that erupted really
00:58:08.160 during the
00:58:09.200 regime
00:58:11.760 for those two notes
00:58:14.400 it's also clear
00:58:16.640 that
00:58:19.599 we satisfy the second ground for
00:58:21.440 exception
00:58:22.720 under the moodness doctrine
00:58:25.359 so one is not moved to
00:58:27.520 even if it was we satisfy all the
00:58:29.440 requirements
00:58:30.720 for the exceptions and therefore the
00:58:32.480 court could have
00:58:34.000 if it really wanted to decided on this
00:58:36.720 case
00:58:40.319 a couple of notes um
00:58:43.040 i think mangalina versus caritano
00:58:46.240 uh
00:58:47.200 cluttered the constitutional litigation
00:58:49.200 with uh you know variant technicalities
00:58:54.480 new things to think about
00:58:56.640 um
00:58:57.920 when you're litigating although
00:58:59.760 my position is that
00:59:01.599 these are these are just simply wrong
00:59:04.880 but the supreme court has spoken so
00:59:06.400 that's
00:59:07.440 that's the rule
00:59:10.079 you have to leave i have to revise my
00:59:11.520 book on legal method
00:59:13.920 again
00:59:14.960 and
00:59:16.079 this victory
00:59:18.000 gives
00:59:18.880 uh president duterte
00:59:21.280 his latest win
00:59:23.440 in this spotless record before the
00:59:26.160 supreme court
00:59:28.480 probably the only president we've ever
00:59:30.640 had who's
00:59:31.680 never lost
00:59:34.880 in the post-marcos
00:59:36.480 era anyway
00:59:38.640 so there
00:59:39.599 i would like to thank you and i look
00:59:41.839 forward to a fruitful discussion um at
00:59:46.400 the proper time
00:59:48.480 thank you
00:59:52.319 thank you uh very much professor
00:59:54.640 gatmaitan that was such a rich
00:59:56.720 presentation that i can already see
00:59:58.839 questions percolating in your minds
01:00:01.760 questions that you can ask by using the
01:00:04.799 q and a function
01:00:06.559 of the webinar
01:00:08.240 so you can do that now
01:00:10.000 or you can ask in the live question and
01:00:12.720 answer later so we look forward to those
01:00:15.280 questions later now we turn to the
01:00:17.760 international dimension of the
01:00:19.839 pangilinan ruling our esteemed third
01:00:22.480 speaker on this topic is professor dr
01:00:25.119 diane de certo dr dicierto is a
01:00:28.079 professor of law and global affairs at
01:00:30.160 the university of notre dame she is also
01:00:32.400 the faculty director of the university's
01:00:34.799 llm program in human rights with joint
01:00:37.520 appointment at the kiel school of global
01:00:39.760 affairs
01:00:41.040 she is also a faculty fellow at the
01:00:43.040 klaus center for civil human rights the
01:00:45.599 kellogg institute of international
01:00:47.440 studies the liu institute for asia and
01:00:49.839 asian studies uh pult institute for
01:00:52.240 global development and the novich
01:00:54.000 institute of european studies she's also
01:00:56.640 a co-principal investigator of the notre
01:00:59.359 dame reparations design and compliance
01:01:01.680 lab
01:01:02.640 dr ducharta previously also taught at
01:01:05.359 the university of the philippines peking
01:01:07.440 university school of trans doctor dr
01:01:09.119 ducerto also serves on the editorial and
01:01:12.000 scientific advisory boards of the
01:01:14.000 european journal of international law
01:01:16.000 and the editor of its leading
01:01:17.280 international law blog egel talk journal
01:01:20.240 of world investment and trade
01:01:21.920 international studies in various asian
01:01:24.160 international law journals dr dusharta's
01:01:26.880 fields of expertise are international
01:01:28.880 law and human rights international
01:01:30.720 economic law and development
01:01:32.720 international arbitration maritime
01:01:34.559 security asean law and comparative
01:01:37.040 public law her rich legal scholarship
01:01:40.079 includes having authored or edited books
01:01:42.240 which include public policy in
01:01:44.079 international economic law the icser in
01:01:47.440 trade investment and finance finance
01:01:50.079 asean law and regional integration
01:01:52.240 governance and the rule of law in south
01:01:54.160 east asia's single market
01:01:56.079 dr ducharte holds jsd and llm degrees
01:01:59.200 from yale law school dr ducerto during
01:02:02.160 her time at yale was also howard m
01:02:04.720 holtzman's fellow in international
01:02:06.400 arbitration and dispute resolution a
01:02:08.880 lillian goldman perpetual scholar editor
01:02:11.839 of the yale journal of international law
01:02:14.240 and a
01:02:15.240 2010-2011 yale fellow of his excellency
01:02:18.319 judge bruno sima and judge bernardo
01:02:21.200 sepulveda amor at the international
01:02:23.440 court of justice behind the netherlands
01:02:26.000 she graduated from the u.p college of
01:02:28.079 law s class salutatorian and [ __ ] laude
01:02:30.240 in 2004. she was chair of the editorial
01:02:33.280 board of the philippine law journal and
01:02:35.280 she also graduated summa [ __ ] laude and
01:02:37.520 class valedictorian of the up school of
01:02:40.000 economics in 2000 and this and her
01:02:42.559 participation in our lecture today is
01:02:45.280 particularly apropos because she is also
01:02:47.760 the philippines focal point person
01:02:50.079 appointed by the international criminal
01:02:52.160 court bar association dr diane dicerto
01:02:55.440 the floor is yours
01:02:57.839 thank you very much professor two and
01:03:00.160 thank you very much to the university of
01:03:02.240 the philippines college of law
01:03:04.400 to esteemed colleagues and mentors and
01:03:06.799 contemporaries and former students it is
01:03:09.680 always a pleasure to be able to return
01:03:11.839 home however virtually and most
01:03:14.240 importantly on a discussion such as this
01:03:16.319 facilitated by the malcolm foundation
01:03:19.520 it's quite apropos to have the
01:03:21.359 discussion every time and i get
01:03:23.440 intrigued every time the philippine
01:03:25.200 supreme court
01:03:26.480 weighs in on international legal issues
01:03:29.920 and puts forward another
01:03:32.240 species of decision making involving the
01:03:35.200 interrelationship between constitutional
01:03:37.839 law and international law now my
01:03:40.160 predecessor is professor palacios and
01:03:42.480 professor
01:03:44.000 have very ably discussed
01:03:46.880 the background of the case the context
01:03:49.280 of the case the constitutional critique
01:03:51.280 of the case
01:03:52.559 my task here to focus on the
01:03:54.799 international law dimensions will
01:03:56.640 necessarily engage a close read of the
01:03:59.520 case itself it's actually well worth the
01:04:01.920 read to find out what it is exactly that
01:04:04.640 the court decided
01:04:06.559 what it is that the court
01:04:09.520 averted
01:04:10.640 as part of its opinion
01:04:12.559 and what really what kind of impact if
01:04:15.039 anything would it have on the
01:04:16.319 international proceedings
01:04:18.240 so if you permit me to share my screen i
01:04:20.799 promise to be as brief as i can and go
01:04:24.079 through these slides
01:04:25.760 quickly
01:04:34.640 so i aim to discuss three points and
01:04:37.440 with part of which is already overlapped
01:04:39.520 with what professor gattmaitan has
01:04:41.200 already discussed on the decision on
01:04:43.200 mootness and the dispositive in
01:04:45.039 particular the dispositive portion of
01:04:47.440 the supreme court decision i will then
01:04:49.920 proceed to discuss the status of
01:04:51.680 pangilinan as a judicial decision and
01:04:54.160 what its legal consequences are if any
01:04:57.039 on the pending article 15 request of the
01:04:59.359 international criminal court prosecutor
01:05:02.160 for judicial authorization to initiate
01:05:04.480 an investigation into the crime against
01:05:06.960 humanity of murder
01:05:08.960 committed between july 1 2016 and march
01:05:12.319 16 2019.
01:05:15.839 some of the references i'll point to are
01:05:18.319 already
01:05:19.520 particularly my analysis treaties in the
01:05:21.680 philip
01:05:35.440 there is a consider considerable
01:05:37.359 conundrum about what we do with treaties
01:05:39.760 as a species of law
01:05:41.680 and the interesting thing in this
01:05:43.280 article that i've pointed out is that
01:05:44.880 the philippine supreme court has never
01:05:46.480 had a clear methodology
01:05:48.720 for how it treats
01:05:51.039 the legal categorization of treaties how
01:05:54.000 they are recognized how they are
01:05:55.599 transformed and how they are
01:05:56.720 incorporated we have a category of what
01:05:59.280 is called formal treaties that are
01:06:01.280 subject to advise and concurrence by the
01:06:04.400 senate under section 7 article 7
01:06:07.680 section 21 of the 1987 constitution but
01:06:11.280 there's also a species of agreements
01:06:13.440 called executive agreements for which
01:06:15.920 the philippine supreme court dating back
01:06:18.079 to its practices since the early 1930s
01:06:21.200 has recognized agreements that do not
01:06:23.520 require any discernible process for
01:06:26.240 their passage or for their termination
01:06:29.599 and then the third avenue is what
01:06:31.280 professor palacios discussed earlier
01:06:33.200 which is the notion of incorporation
01:06:35.359 under article 2 section 2 of the 1987
01:06:38.319 constitution when the constitution says
01:06:41.280 the generally accepted principles of
01:06:43.520 international law are part of the law of
01:06:46.000 the land what does that mean
01:06:48.000 some supreme court decisions have used
01:06:50.640 that same phrase as the basis to treat
01:06:53.920 treaties or international agreements
01:06:57.119 that do not have the same formal
01:06:59.359 qualities as possessing senate advise
01:07:02.240 and concurrence as somehow incorporated
01:07:05.200 into philippine jurisdiction by virtue
01:07:07.920 of the incorporation clause in the
01:07:10.240 constitution
01:07:11.839 and what's interesting about at least in
01:07:14.880 maya from with respect to the paneling
01:07:17.680 decision is that it attempts somehow
01:07:21.200 to try and lay down rules in this regard
01:07:25.520 without
01:07:26.839 unfortunately paying heed to the track
01:07:29.599 record of jurisprudence that the
01:07:31.680 philippine supreme court has established
01:07:33.839 when it comes to treating
01:07:35.520 um the passage of treaties and the
01:07:37.680 formalities required and the kind of
01:07:40.319 legal recognition that ensues from the
01:07:42.640 passage of these treaties
01:07:44.880 so let me start with the dispositive as
01:07:47.280 we said
01:07:48.720 um i'd like to
01:07:50.160 take a close textual look whenever it's
01:07:52.480 a hundred page something decision
01:07:54.640 because it says something about the the
01:07:56.720 manner and style in which the decision
01:07:58.640 was reached
01:07:59.920 and in particular what it is that the
01:08:01.920 court said i broke this down simply
01:08:04.240 because i was intrigued as to how the
01:08:06.799 court
01:08:07.760 the unanimous court in this case on a
01:08:10.720 basis of
01:08:12.559 reasoning on mootness somehow manages to
01:08:15.520 come up with a hundred page decision
01:08:18.158 on this matter you will find that in
01:08:20.479 parts
01:08:21.520 seven
01:08:22.399 and eight of the decision there is a
01:08:24.960 long disquisition on foreign sources
01:08:28.158 as well as new guidelines that the court
01:08:31.040 claims is the modality for evaluating
01:08:34.080 cases concerning the president's
01:08:35.839 withdrawal from international agreements
01:08:38.399 and to this end this is exactly what
01:08:40.880 justice cochran was describing earlier
01:08:43.040 the notion of incorporating a mirror
01:08:46.000 principle that was articulated by yale
01:08:48.399 law school dean harold cole in one of
01:08:50.799 his legal articles and was grafted
01:08:53.198 wholesale into this decision
01:08:55.679 there's also an incorporation of the
01:08:58.000 youngstown versus sawyer case on an
01:08:59.839 executive action action and madeline
01:09:02.319 versus texas on the president's foreign
01:09:04.238 affairs powers now at the outset i
01:09:07.198 always find it interesting whenever a
01:09:08.880 comparative resort to united states
01:09:11.600 jurisprudence
01:09:13.198 is done by the philippine supreme court
01:09:15.839 because the court is never quite clear
01:09:18.319 as to what as to the criteria by which
01:09:21.520 they deem these foreign sources relevant
01:09:24.960 and one of the things that i will
01:09:26.960 suggest later on in this presentation is
01:09:29.920 perhaps
01:09:31.279 in looking so much towards the
01:09:34.960 frameworks established under the united
01:09:37.359 states presidency
01:09:39.279 the philippine supreme court overlooked
01:09:42.080 that there are other sources of checks
01:09:44.399 and balances within the united states
01:09:46.839 constitutional system such as federalism
01:09:50.640 which doesn't exist in the philippine
01:09:53.198 constitutional setting which is probably
01:09:55.600 why we shouldn't be so hastily ready to
01:09:58.640 accept
01:10:00.239 precedence or persuasive or otherwise
01:10:03.120 from the united states but i'll get
01:10:05.520 there at a certain point in time what's
01:10:07.760 relevant is part nine where the court
01:10:10.080 declares the petitions are moot and then
01:10:12.880 the summary in the last two pages of the
01:10:15.199 decision where the court reiterates that
01:10:17.920 it again dismissed the petitions for
01:10:20.640 failing to demonstrate this justice
01:10:22.640 ability
01:10:23.840 failing standing and that the petitions
01:10:25.760 are moved the court again reiterated its
01:10:28.320 guidelines for how executive action is
01:10:31.040 to be evaluated when it comes to the
01:10:33.920 narrow case of withdrawing international
01:10:36.239 agreements
01:10:38.400 so let me move to the next slide as i
01:10:40.960 said this was the disposition it's one
01:10:43.360 line it simply says the cases are
01:10:45.440 dismissed for being moot it doesn't even
01:10:48.080 say that the cases are dismissed for a
01:10:50.159 lack of justice ability for lack of
01:10:52.159 standing the only reason put forward in
01:10:54.640 the dispositive of this case is mootness
01:10:58.480 and which was already amply discussed by
01:11:00.719 professor gatmaitan
01:11:02.960 let's remember what was the relief that
01:11:04.800 was sought from the court under the
01:11:06.800 petitions for surgery and mandamus
01:11:09.840 there was on the
01:11:11.920 uh an application for a writ of
01:11:13.520 circularity to declare the withdrawal
01:11:16.000 from the rome statute
01:11:18.000 invalid or ineffective and second in
01:11:20.800 order to compel the executive branch to
01:11:23.360 notify the u.n secretary general that is
01:11:26.000 cancelling revoking and withdrawing the
01:11:27.920 instrument of withdrawal
01:11:29.520 this is important because at a later
01:11:32.080 point within the pangelina decision the
01:11:34.880 court claims
01:11:36.880 that the decision or the action of the
01:11:39.280 president to withdraw from the rome
01:11:41.440 statute is quote irreversible that there
01:11:44.800 is no process by which the president's
01:11:47.840 withdrawal could be retracted within the
01:11:50.480 one-year period
01:11:52.560 set under article 127 paragraph one of
01:11:56.239 the rome statute
01:11:58.000 but
01:11:59.360 what's interesting is that even in that
01:12:01.600 respect the court did not take into
01:12:03.520 account the very same practice of the
01:12:05.760 court that they were trying to implement
01:12:08.239 in 2017 there was an attempt or at least
01:12:12.159 there was a notice of rescission that
01:12:14.000 was filed
01:12:15.440 by the gambia with respect to within the
01:12:18.239 one-year period
01:12:19.840 in under article 127 they filed a notice
01:12:22.800 of rescission that was accepted by the
01:12:24.880 un secretary general that ensured that
01:12:27.679 the gambial would stay within the rome
01:12:30.080 statute so for the court to say that it
01:12:33.040 was irreversible what the president did
01:12:36.000 was already foreclosed and it was
01:12:38.080 completed was in itself
01:12:40.800 a narrow understanding of what the
01:12:42.960 practices were at the international
01:12:44.880 criminal court
01:12:47.760 and i'll skip the expanded power of
01:12:49.440 judicial review as we all know the
01:12:51.760 judicial review powers of the supreme
01:12:53.840 court and this probably the only reason
01:12:56.239 why i'm i'm including this here
01:12:58.719 is because the nature of our judicial
01:13:01.120 review under the philippine constitution
01:13:03.760 is vastly greater than the nature of
01:13:06.640 judicial review under the united states
01:13:09.040 constitution so to the extent that so
01:13:11.679 much deference was lent
01:13:13.840 by the philippine supreme court to
01:13:16.719 foreign precedents particularly
01:13:19.199 presidents under the u.s jurisdiction
01:13:22.159 there was in a certain sense a
01:13:24.719 relegation of the expanded power of
01:13:26.640 judicial review and how important that
01:13:28.719 is for the unique constitutional system
01:13:31.600 of the philippines
01:13:33.600 so again what were the issues raised
01:13:35.840 these i'll let me go through this very
01:13:38.159 quickly because this has already been
01:13:39.760 discussed by the three previous speakers
01:13:42.400 three sets of petitioners
01:13:44.560 all of the petitions were filed after
01:13:47.520 march 17 2018 which is the date of
01:13:50.640 effectivity of the withdrawal of the
01:13:53.440 notice of withdrawal and deposit by the
01:13:56.000 philippine government with the u.n
01:13:57.760 secretary general
01:13:59.520 all of whom were alleging different
01:14:01.440 grounds one set of petitioners the
01:14:03.360 second set of petitioners the philippine
01:14:05.840 coalition for the icc were alleging
01:14:08.560 violations of their constitutional
01:14:10.400 rights and also in particularly were
01:14:13.760 alleging and alleging that the rome
01:14:16.159 statute still existed even without
01:14:18.640 publication because of the incorporation
01:14:21.120 clause this goes into what i was
01:14:22.800 describing earlier that some of the
01:14:24.480 jurisprudence of the supreme court has
01:14:27.120 accepted treaties and software
01:14:29.440 instruments as having been already
01:14:31.440 admitted into the philippines by virtue
01:14:33.600 of the incorporation clause
01:14:36.239 and the third practitioner the
01:14:37.760 integrated bar of the philippines
01:14:41.120 again what was the reason for declaring
01:14:44.080 all the petitions moot you can find it
01:14:46.640 in the fourth paragraph of the decision
01:14:49.360 where in the simple narrative the court
01:14:51.840 simply says
01:14:53.280 that because
01:14:54.719 on march 17 2018 in some
01:14:58.800 because withdrawal was perfected
01:15:03.760 the philippines completed all the
01:15:05.679 requisite acts of withdrawal and this
01:15:07.840 was all consistent and in compliance
01:15:09.920 with what the rome statute plainly
01:15:11.920 requires everything to enable withdrawal
01:15:15.040 had already been consummated the
01:15:17.440 petitions were therefore moot
01:15:20.400 when they were filed
01:15:22.239 this raises an important question
01:15:24.159 because if this is really a question of
01:15:26.080 time
01:15:27.040 as to
01:15:28.320 whether or not there was a perfected act
01:15:30.480 of withdrawal and whether that
01:15:32.159 correlated with the specific items of
01:15:34.560 relief that the petitioners were seeking
01:15:37.440 one has to question
01:15:39.199 how the supreme court ended up with a
01:15:41.600 hundred page decision interpreting
01:15:44.400 constitutional law and the rome statute
01:15:47.360 if supposedly the petitions were at the
01:15:49.840 outset already moot if the case is moot
01:15:53.840 and dismissed for mootness what is the
01:15:56.159 status of all other
01:15:58.400 rules and guidelines that were placed by
01:16:01.040 the supreme court in this decision in
01:16:02.960 regard to the interpretation of
01:16:05.040 constitutional provisions on treaties
01:16:07.440 and the incorporation clause
01:16:10.800 this
01:16:12.080 and one has to wonder and we have to
01:16:14.320 separate this a little bit because there
01:16:16.719 seems to be at least from the conception
01:16:18.880 of the court in this decision a hard
01:16:21.440 notion that what was at stake was simply
01:16:25.199 the written notice of withdrawal and
01:16:27.360 whether that was perfected but if we go
01:16:30.000 back to what the parties were asking
01:16:32.239 part of what they were asking for in the
01:16:34.320 petition
01:16:35.520 was to
01:16:36.560 ask for the revocation of that notice of
01:16:39.920 withdrawal it didn't just amount to
01:16:42.880 whether or not the withdrawal was
01:16:44.560 already final as i said in the example
01:16:47.600 of the gambia whose notice of recession
01:16:50.560 of its notice of withdrawal was accepted
01:16:54.080 by the united nations secretary general
01:16:56.640 and also accepted by the assembly of
01:16:58.560 states parties one has to question why
01:17:02.560 insofar as the supreme court was
01:17:05.280 concerned the case was over the moment
01:17:07.840 the rome statute
01:17:10.320 rather the moment the notice of
01:17:11.679 withdrawal was filed or deposited or
01:17:13.920 received by march 17 2018.
01:17:17.440 this is a question because in the one
01:17:19.600 hand withdrawal from the narrow sense of
01:17:22.000 how the court understands it is limited
01:17:25.199 to the very act of notification of
01:17:27.120 withdrawal but it doesn't take into
01:17:28.880 account article 127 where there is an
01:17:31.920 interregnum of one year
01:17:34.239 from the time of the deposit of the
01:17:36.239 notice of withdrawal to the time that
01:17:39.040 all the legal consequences of withdrawal
01:17:42.159 set in
01:17:43.679 and within that period certainly to say
01:17:46.719 that the petitioners did not have any
01:17:48.640 interests was quite interesting on the
01:17:50.960 part of the court
01:17:54.080 this is precisely why the icc
01:17:56.880 prosecutors june 2021 statement
01:18:00.880 referred to the withdrawal on march 17
01:18:03.920 as having absolutely no bearing on the
01:18:07.120 court's jurisdiction over crimes that
01:18:09.440 are alleged to have occurred on the
01:18:11.440 territory
01:18:12.400 of the state during the period when it
01:18:14.320 was a state party to the rome statute
01:18:17.199 the crimes are not subject to any
01:18:19.199 statute of limitation and for the reason
01:18:22.239 for the precise reason that the
01:18:23.760 prosecutor already made a determination
01:18:26.800 when it filed its request
01:18:29.040 to the pre-trial chamber of the
01:18:31.120 international criminal court for
01:18:32.640 authorization to proceed with a with an
01:18:35.760 investigation
01:18:37.520 the period covered is july 1 2016 to
01:18:40.560 march 16 2019.
01:18:42.960 in so far as the icc prosecutor is
01:18:45.840 concerned
01:18:47.040 nothing that transpired within the
01:18:49.600 philippine supreme court case materially
01:18:52.719 affected the jurisdiction of the
01:18:54.480 prosecutor except for the temporal
01:18:57.520 element the cut off time under which the
01:19:00.880 the crimes alleged would be investigated
01:19:03.280 the cutoff was 16 march
01:19:05.880 2019 which is the date
01:19:08.800 um the day before the full effectiveness
01:19:12.400 of withdrawal sets in
01:19:15.600 and again these were the provisions that
01:19:17.520 were set and discussed by my two
01:19:19.280 previous colleagues so i'm not going to
01:19:21.280 dwell on that any further
01:19:24.159 so the question is where the petitions
01:19:25.920 really moved and professor gatmaitan put
01:19:28.880 forward
01:19:30.000 an excellent discussion of the
01:19:31.440 exceptions to mootness but one has to
01:19:34.000 understand what is mootness and how did
01:19:36.080 the court understand it from the
01:19:38.320 international law standpoint if you're
01:19:40.640 going to think about mootness there were
01:19:43.120 many things pending insofar as the
01:19:45.840 completion of the notice and the
01:19:47.440 positive withdrawal it was completed
01:19:50.400 but their the full legal consequences
01:19:53.040 the effectiveness of withdrawal did not
01:19:55.280 set in until one year after the date of
01:19:58.000 the receipt of notification one year
01:20:00.159 after march 17 2018 which is march
01:20:03.840 2019
01:20:05.440 all of the supreme court petitions were
01:20:07.679 filed within this one year period and
01:20:10.080 yet the court says that because
01:20:13.120 withdrawal was perfected because the
01:20:15.840 withdrawal was irreversible
01:20:18.400 because there was supposedly no process
01:20:21.520 by which
01:20:22.800 the rome statute or the international
01:20:25.280 criminal court could somehow accept a
01:20:28.000 retraction
01:20:29.440 of the president's withdrawal
01:20:32.320 then this is already a fail complete
01:20:35.040 then these petitions are already moved
01:20:37.280 as i said that required further
01:20:39.280 investigation had they actually taken a
01:20:41.440 look at dependency of
01:20:44.320 the gambia's notice of rescission and
01:20:46.639 the outcome where the icc accepted the
01:20:49.679 notice of rescission then perhaps this
01:20:52.080 the interpretation could have been
01:20:53.840 different in this case
01:20:56.320 the judicial reasoning is also important
01:20:58.719 because here by by presenting by
01:21:02.639 focusing on mootness from the standpoint
01:21:05.199 of justiciable controversies
01:21:08.159 by virtue of supervening events again it
01:21:10.880 makes it so much easier for the court to
01:21:13.199 say everything was done by march 17 2018
01:21:17.840 but this depends on what controversy
01:21:20.880 you're defining
01:21:22.560 and this is why i like to go back to
01:21:24.239 what the petitioners were actually
01:21:25.920 asking they were in their petitions also
01:21:29.120 asking for the revocation the recession
01:21:32.480 of the withdrawal that was sent to the
01:21:34.480 icc
01:21:35.679 and so for the court to say with no
01:21:37.840 reference to any international law
01:21:39.920 sources
01:21:41.040 that the the retraction that there was
01:21:43.360 no way to retract the withdrawal was
01:21:46.320 wrong under international law
01:21:50.960 here in this part of the decision in
01:21:52.880 page 63 is where the court finds that
01:21:55.440 the president's withdrawal is
01:21:56.960 irreversible and and thus outside of its
01:21:59.920 judicial power
01:22:02.239 and here the court expresses
01:22:04.560 apprehensions about interfering with the
01:22:06.960 international criminal court which i
01:22:08.800 thought fairly strange because a notice
01:22:11.600 of rescission had no bearing whatsoever
01:22:14.320 in so far as interfering with the
01:22:16.159 international criminal court
01:22:18.560 this is the text where it says the text
01:22:21.040 provides
01:22:22.159 a mechanism on how to withdraw from it
01:22:24.239 but the rome statute does not have any
01:22:26.320 proviso on the reversal of a state
01:22:28.480 party's withdrawal
01:22:30.080 unfortunately because the court only
01:22:32.960 focused on the rome statute and did not
01:22:35.440 look at the actual practices of the
01:22:37.440 court the rules of procedure in relation
01:22:40.239 to the court as well as the the
01:22:42.639 decisions of the assembly of state
01:22:44.480 parties they failed to take into account
01:22:46.880 that it is possible to have a notice of
01:22:49.040 rescission within the one-year
01:22:51.120 interregnum the one-year period before
01:22:53.280 the full effectiveness of withdrawal
01:22:56.080 could take place
01:22:59.199 the court as i say as i said earlier in
01:23:02.159 pages 64-65
01:23:04.000 again says the petitions are only
01:23:06.159 directed
01:23:07.199 really
01:23:08.159 uh in so far as the approval or finality
01:23:10.719 of the withdrawal they separated the
01:23:12.639 one-year period and said in this
01:23:14.400 instance that there is no bearing and
01:23:16.639 therefore in this case everything was
01:23:18.719 moved and as such there could not have
01:23:20.880 been any legal interest on the part of
01:23:22.880 the petitioners to seek judicial review
01:23:26.159 under the expanded judicial review
01:23:27.840 powers of the philippine supreme court
01:23:31.199 again the court refuses to exercise
01:23:33.360 jurisdiction denying transcendental
01:23:35.360 importance as admirably discussed by
01:23:37.520 professor gatmaitan
01:23:39.920 and this part and page 78 is something i
01:23:42.560 found extremely interesting
01:23:44.800 the court actually makes a finding of
01:23:47.040 fact and law
01:23:48.400 by saying in these three sentences that
01:23:51.520 the president's withdrawal from the rome
01:23:53.679 statute was in accordance with the
01:23:56.400 mechanism provided in the treaty
01:23:59.120 stating that the rome statute itself
01:24:01.520 contemplated and enabled the state
01:24:03.360 party's withdrawal and the state party
01:24:05.280 and its agents cannot be faulted for
01:24:07.840 merely acting within what the rome
01:24:10.000 statute expressly allows what the court
01:24:12.719 was actually doing was interpreting the
01:24:15.280 rome statute
01:24:16.719 which is ironic because this is a
01:24:18.400 decision that says it's moot at the
01:24:20.960 outset from the time of filing if it is
01:24:24.159 moot at the outset from the time of
01:24:26.159 filing what business was it of the
01:24:29.040 philippine supreme court at that point
01:24:31.840 in time to say that it would make
01:24:34.400 findings of facts supposedly of the
01:24:36.560 president's compliance with the rome
01:24:38.800 statute and with what the rome statute
01:24:41.600 supposedly allowed
01:24:43.520 that kind of determination inserted into
01:24:46.080 the case was quite intriguing because it
01:24:48.560 made no reference to the record
01:24:50.239 whatsoever it made no reference to the
01:24:52.960 existing procedures of the statute and
01:24:55.199 frankly um it was
01:24:59.280 uh from the standpoint of mootness it
01:25:01.520 was not necessary to come out with this
01:25:04.000 with this finding of fact and law
01:25:07.600 again what was also interesting was page
01:25:09.920 79 where the court says what really are
01:25:13.120 the facts that we would take into
01:25:14.800 consideration to establish grave abuse
01:25:17.360 of discretion and this i found extremely
01:25:20.000 interesting even in the long
01:25:21.520 jurisprudence of grave abuse of
01:25:23.199 discretion because in this narrow
01:25:25.600 situation of withdrawal
01:25:28.480 by
01:25:29.360 a president from the international
01:25:31.760 criminal court from the rome statute
01:25:35.040 there were specific criteria or factual
01:25:38.320 indicia that the court laid out again
01:25:41.280 without citing to any sources this is
01:25:43.520 basically the court saying
01:25:45.360 here are the facts that we would have
01:25:47.280 taken into account to say that there was
01:25:49.679 grave abuse of discretion
01:25:51.840 if somehow there was manifest disregard
01:25:54.639 of previously declared periods for
01:25:57.120 rectification terms guidelines and
01:25:59.600 junctions if the action was born out of
01:26:02.159 vindictiveness as retaliation or out of
01:26:05.199 personal motives to please personal
01:26:07.360 tastes or to placate personal perceived
01:26:10.159 injuries as to amount to whimsical and
01:26:12.800 arbitrary exercise of discretion
01:26:16.320 quite intriguing here is that the court
01:26:19.280 actually set factual criteria
01:26:22.560 but did not invite the considered that
01:26:25.199 this could be a case of grave abusive
01:26:27.199 discretion again it's a foreshadowing of
01:26:29.840 what i found so
01:26:31.199 disingenuous to a certain extent with a
01:26:33.440 decision because on the one hand it says
01:26:35.520 it's moot but on the other it's telling
01:26:38.080 the public this is what it's going to
01:26:40.239 take
01:26:41.280 to be able to revoke presidential
01:26:43.760 withdrawal
01:26:46.159 so turning
01:26:48.159 given that kind of paradox in the
01:26:50.480 writing and structure of this decision
01:26:52.639 the text and structure of this decision
01:26:55.040 what is the status of pangalinan as a
01:26:57.120 judicial decision
01:26:58.719 we all know as lawyers that judicial
01:27:01.120 decisions
01:27:02.400 do form part of the legal system of the
01:27:04.560 philippines that's language that is
01:27:06.800 deliberate it is not the equivalent of
01:27:09.440 forming part of the law of the land
01:27:12.239 the language is grafted quite similarly
01:27:14.639 to the napoleonic civil code and as
01:27:17.520 interpreted by the unanimous supreme
01:27:19.520 court on bank decision in 2017
01:27:22.880 while decisions of the court are not
01:27:24.880 laws pursuant to the doctrine of
01:27:26.639 separation of powers they evidence their
01:27:29.280 meaning their breath their scope and
01:27:31.360 therefore they will have the same
01:27:33.040 binding force as the laws themselves
01:27:36.639 but
01:27:37.440 remember that this case turned on one
01:27:40.480 ground dismissed for being moot
01:27:43.520 and thus what is relevant here for
01:27:45.679 purposes of our analysis and for
01:27:48.080 purposes of determining what is binding
01:27:50.639 from this judicial decision is to
01:27:52.719 separate out what is the reasoning for
01:27:54.960 mootness
01:27:56.159 the reasoning was simply they were moot
01:27:58.560 when they were filed because everything
01:28:00.800 was supposedly perfected by virtue of
01:28:03.760 the withdrawal
01:28:06.080 and in this way if we read it in that
01:28:08.800 way
01:28:09.679 the decision actually
01:28:11.600 has less of a presidential less if not
01:28:14.400 very little narrow
01:28:16.400 presidential effect than we would think
01:28:18.960 i mean some of the things that troubled
01:28:20.639 justice carpio in the beginning which he
01:28:22.639 aptly pointed out our orbiter dicta
01:28:25.280 could very readily be pointed out as
01:28:27.679 abitar dicta because in our jurisdiction
01:28:31.360 what matters is the principle that
01:28:33.520 underlies the decision in one case that
01:28:36.719 is what we deem to be controlling as
01:28:39.520 imperative
01:28:40.840 authority this is why the philippine
01:28:43.760 supreme court made it very clear in 2010
01:28:47.760 that ours is not a common law system the
01:28:51.360 judicial precedents are not always
01:28:53.920 strictly and rigidly followed this is
01:28:56.320 very different from say american common
01:28:59.040 law or english common law where the
01:29:01.440 entire read is aptly pointed out by the
01:29:03.840 supreme court the traditional
01:29:06.000 pronouncement in a decision may be
01:29:08.320 followed as a president only when its
01:29:11.360 reasoning and justification are relevant
01:29:14.639 and because pangilinan was decided on
01:29:17.199 mootness and the only reasoning for
01:29:19.840 mootness was that the petitions were
01:29:21.679 filed after march 17 2018
01:29:25.440 everything else that the court said
01:29:28.159 in regard to prescribing guidelines for
01:29:30.880 when the president's
01:29:32.560 act of withdrawal could be controlled
01:29:34.960 somehow under a mirror principle or
01:29:37.520 under the youngstown framework all of
01:29:39.920 these findings in and of themselves do
01:29:42.800 not have the presidential value that we
01:29:45.760 would think
01:29:47.840 so to wrap up
01:29:49.760 what legal consequences if any could
01:29:52.320 there be on the prosecutor's article 15
01:29:55.040 request
01:29:57.120 my short answer is there is no legal
01:29:59.040 effect on the icc prosecutor's pending
01:30:01.920 request at the international criminal
01:30:03.840 court the statute is clear
01:30:06.400 the request for authorization is
01:30:08.320 submitted to the pre-trial chamber along
01:30:10.480 with all the supporting material
01:30:12.080 collected
01:30:13.120 victims may make their representations
01:30:15.280 accordingly
01:30:16.800 the pre-trial chamber then has to make a
01:30:19.199 decision examining the request and the
01:30:21.440 supporting material
01:30:23.280 and can authorize the commencement of
01:30:25.360 the investigation without prejudice to
01:30:27.840 subsequent determinations by the court
01:30:31.760 if the pre-trial chamber were to refuse
01:30:34.400 to authorize the investigation that is
01:30:37.120 not
01:30:38.000 that does not close the matter because
01:30:40.000 it will not preclude the current
01:30:42.320 prosecutor karim khan from presenting or
01:30:45.600 some new facts or evidence regarding the
01:30:48.000 same situation
01:30:49.840 so in conclusion
01:30:51.760 what i would say is panilinan is a
01:30:53.360 judicial decision of limited effect
01:30:56.560 and will not affect the under philippine
01:30:59.040 law and will not affect pending icc
01:31:01.120 proceedings the 100 page text really
01:31:04.320 leads only to a decision to dismiss all
01:31:06.480 petitions due to mootness the only
01:31:09.040 relevant reasoning in that decision for
01:31:11.280 purposes of staring decisis under
01:31:13.280 article 8 of the civil code is the
01:31:15.440 judicial reasoning that led to the
01:31:17.520 conclusion of mootness
01:31:19.520 all else which is orbiter dicta in the
01:31:22.320 decision will not have the effect of
01:31:24.159 precedent
01:31:25.679 the decision also has no effect
01:31:27.360 whatsoever on the pending icc
01:31:29.360 prosecutor's article 15 request and that
01:31:32.800 will continue i very much appreciate the
01:31:36.159 the opportunity to have this discussion
01:31:38.560 and engage with colleagues and i look
01:31:40.639 forward to the discussion
01:31:43.520 all right thank you uh very much dr
01:31:45.760 deserto excellent uh presentation as
01:31:48.320 always and uh all the materials from our
01:31:51.280 speakers today should give us a
01:31:53.520 uh rich starting point from where we can
01:31:55.840 ask uh our questions and so at this
01:31:58.880 point we do want to hear from you
01:32:02.080 and see uh what questions you have for
01:32:05.120 our speakers uh
01:32:06.639 and uh i will call on pau to whom the
01:32:10.080 question is directed thank you hi mike
01:32:14.159 uh i have actually one question each for
01:32:17.840 uh professor gatmaitan and professor
01:32:20.080 desharito
01:32:21.280 so for professor that matan i don't know
01:32:24.159 if sir bangat will agree that
01:32:27.760 the issue on standing that was raised in
01:32:30.159 the case
01:32:31.440 uh
01:32:32.239 may actually be more of a ripeness thing
01:32:34.639 because the court essentially says that
01:32:37.040 the senate has not yet acted on the
01:32:38.880 proposed resolution
01:32:40.800 uh and
01:32:42.239 on that premise
01:32:44.320 would he agree that
01:32:45.840 whether the case
01:32:47.199 would they agree that the decision
01:32:48.480 effectively forecloses any challenge to
01:32:50.719 a unilateral withdrawal from a treaty
01:32:53.360 since in a unilateral withdrawal the
01:32:55.679 president precisely does not submit
01:32:57.600 anything to the senate and so this
01:32:59.120 senate would not have anything to act
01:33:00.719 upon
01:33:02.639 all right uh thank you bob uh pardon me
01:33:05.280 before our speakers answer me i request
01:33:07.679 that the speakers be put on spotlight
01:33:10.800 justice scarpio
01:33:12.560 professors raj palacios
01:33:15.360 dr dean dicerto and professor gatmaitan
01:33:17.920 please
01:33:30.960 and okay so and then professor
01:33:33.520 so the question was supposed to
01:33:35.280 professors katmaitan and ducerto
01:33:39.280 so sorry like for for professor desert
01:33:41.120 it's a different question but maybe best
01:33:43.280 to hear first from sir then all right
01:33:46.960 okay so the question is whether it's an
01:33:49.679 issue of rightness
01:33:51.520 um i think not simply because the court
01:33:54.400 doesn't
01:33:55.440 make a reference
01:33:57.199 to uh
01:33:58.239 to that technicality you know
01:34:00.560 um what what i read in the opinion of
01:34:04.960 the court was that um
01:34:07.210 [Music]
01:34:09.199 because of the inaction of the senate
01:34:12.400 they have no right to bring the case
01:34:15.280 and that is the is the the the part that
01:34:18.480 really jarred me when i was reading this
01:34:21.600 because
01:34:22.480 you know everyone you know for all the
01:34:24.239 reasons that i said before if it was an
01:34:26.320 issue of rightness they would have said
01:34:27.520 so
01:34:29.920 so that that's that's my take on it
01:34:33.760 thanks thank you sir
01:34:35.440 for professor the sheriff
01:34:38.000 would you think that it was proper in
01:34:39.760 the first place for the court
01:34:42.159 um to even consider the withdrawal
01:34:44.560 mechanism in the icc statute which is a
01:34:47.280 matter of international law
01:34:49.679 considering that the issues raised by
01:34:51.440 the petitioners were constitutional in
01:34:53.119 nature and therefore a matter of
01:34:54.800 municipal law
01:34:57.679 and so could it ever be mood
01:35:00.639 could the case ever be moved on the
01:35:02.000 ground of acceptance
01:35:04.080 uh
01:35:04.960 by the icc
01:35:07.600 thanks for the question professor damasi
01:35:10.080 the interesting point is what the court
01:35:12.560 actually did was to confer judicial
01:35:15.199 notice
01:35:16.560 somehow
01:35:17.679 on practices of the rome statute
01:35:21.040 practices of the court without really
01:35:23.520 taking judicial notice of the entire
01:35:25.679 practices of the court
01:35:27.520 and in the process they engaged in
01:35:29.760 interpretation of the statute without
01:35:32.000 relevance without actually looking at
01:35:34.239 the actual practice of the court
01:35:36.320 notice of rescission of withdrawal is
01:35:38.159 very much possible it's already been
01:35:40.480 done but they didn't take traditional
01:35:42.560 notice so the selectiveness of judicial
01:35:44.800 notice is something i have to wonder
01:35:46.880 about especially since the decision
01:35:49.040 doesn't refer to
01:35:50.719 anything in the record that the parties
01:35:53.520 adduced
01:35:55.119 doesn't refer to any other jurisprudence
01:35:57.679 it's unsourced so because it's unsourced
01:36:00.159 i have to wonder where did the court
01:36:02.320 find its interpretation of the rome
01:36:04.320 statute so to a certain extent i agree
01:36:07.360 um it wasn't necessary to even go there
01:36:09.840 if they're going to say that this entire
01:36:12.159 matter is just decided by
01:36:14.400 whether or not their petitions were
01:36:16.000 filed before march 17 2018 then this
01:36:19.920 could have been a five-page decision
01:36:22.080 possibly even two
01:36:25.199 all right thank you uh
01:36:27.280 we have okay so
01:36:29.040 let me take this opportunity to ask my
01:36:30.719 own question and i hope i'm not being
01:36:33.040 impertinent in asking this but i asked
01:36:35.119 this question of you as uh scholars of
01:36:38.159 uh you know law and politics and
01:36:40.080 judiciaries and justice skype has been a
01:36:42.080 member of the judiciary so the question
01:36:44.080 is how much of this really is the court
01:36:46.400 thinking that the public is not
01:36:48.560 interested enough in the issue so that
01:36:50.639 it won't generate backlash
01:36:52.960 on the kind of method
01:36:55.440 i mean so we know that uh because you
01:36:57.520 know sometimes we refer to us decisions
01:36:59.360 and they do listen to the public polls
01:37:02.320 here do you think that the court
01:37:04.080 listened and didn't hear enough
01:37:06.639 so that there's no worry about the
01:37:08.320 backlash of the kind of method that it
01:37:10.000 used here
01:37:13.040 to everyone
01:37:14.080 or to anyone who wants to answer maybe
01:37:15.679 we can start with a justice card
01:37:18.000 if you're allowed to even answer that
01:37:19.920 question just
01:37:25.520 i think you're on mute
01:37:27.199 sorry uh you're asking what is the input
01:37:29.440 of a public sentiment on decisions of
01:37:31.679 the supreme court well it
01:37:34.400 the supreme court
01:37:36.560 will take notice of public sentiment but
01:37:39.679 whether they actually
01:37:41.360 follow the public sentiment or not is
01:37:43.199 another thing
01:37:45.679 you cannot really
01:37:47.600 quantify it it will be on a case-to-case
01:37:49.920 basis
01:37:51.840 we are all affected by what's happening
01:37:53.920 outside of the court but
01:37:56.560 at the end of the day we will decide it
01:37:58.960 based on law
01:38:02.400 as much as possible will decide based on
01:38:04.800 law
01:38:05.600 uh but of course uh
01:38:07.520 you can always argue that this is
01:38:10.080 based on law when in fact it's not
01:38:12.560 and that's the big problem thank you
01:38:16.000 okay uh
01:38:17.199 if i may just add
01:38:19.119 i thought one of the curious things in
01:38:20.800 the decision was pointing out that there
01:38:22.639 are enough local remedies under republic
01:38:25.040 act 98 51
01:38:26.960 which was passed in 2009 but the court
01:38:29.360 again in that
01:38:30.639 instance only looks to the substantive
01:38:34.080 the subject matter of what crimes are
01:38:36.960 prosecuted under that act but they
01:38:39.600 neglect the entirety of the edifice of
01:38:42.320 having an international criminal court
01:38:44.480 the cooperative mechanism and
01:38:46.320 enforcement mechanisms that are
01:38:47.920 available under the rome statute they
01:38:50.480 think that or at least in the many by
01:38:52.880 local statute what about the possibility
01:38:55.040 of victims to access directly the
01:38:57.920 procedures at the international criminal
01:39:00.320 court which provide a network a global
01:39:03.760 network that is not like
01:39:06.320 the local reach of republic act 9851
01:39:10.239 again that's another issue of
01:39:11.840 selectiveness when it came to the
01:39:13.520 court's lands um with respect to the
01:39:16.080 rome statute and the international
01:39:17.679 criminal court
01:39:20.239 thank you uh professor gatmaitan your
01:39:22.239 thoughts on backlash perhaps
01:39:25.840 because i am a skeptical person
01:39:29.040 i imagine the supreme court didn't
01:39:31.040 really want to write a two-page decision
01:39:34.880 and it's because they are considering
01:39:37.199 the the possible backlash we went on and
01:39:40.320 on and on you know to provide some
01:39:42.719 guidance for the
01:39:44.560 for future litigation although i think
01:39:46.320 everybody here today you said this is
01:39:48.320 over there
01:39:49.840 and i think that would account for
01:39:52.000 the the fact that we have an extremely
01:39:54.159 long
01:39:55.040 potentially useless decision
01:39:57.280 is really uh uh a guard against the
01:40:01.520 backlash can you imagine if the supreme
01:40:03.760 court came up with a page decision
01:40:05.600 saying oh this space is smooth
01:40:08.639 nobody's going to like that one
01:40:12.960 okay thank you professor yeah yes
01:40:16.560 there
01:40:17.520 you see the
01:40:19.119 we have three branches of government and
01:40:22.159 each branch must be
01:40:25.119 vigilant that
01:40:26.800 immediately by the majority in the sense
01:40:28.960 would have immediately passed a
01:40:30.560 resolution that
01:40:32.800 the president's act uh is against the
01:40:35.600 constitution and
01:40:37.040 brought the case to the supreme court
01:40:38.480 that would have settled it
01:40:40.480 but they did not and they only realized
01:40:43.760 their mistake when the president again
01:40:46.239 terminated another treaty the vfa that's
01:40:48.880 when they passed the resolution and went
01:40:51.040 to the supreme court
01:40:52.639 you see there is this tension
01:40:55.840 among the three branches when i was
01:40:58.159 presidential legal counsel
01:41:01.520 the senators were telling me why don't
01:41:04.400 you submit the
01:41:06.159 nomination of
01:41:07.840 the press secretary and the secretary
01:41:10.000 for confirmation by the commission on
01:41:12.320 appointments you will confirm there will
01:41:14.000 be no problem i said but that's not
01:41:15.920 required under the constitution these
01:41:18.080 are not department heads
01:41:20.800 why would we
01:41:22.000 allah
01:41:24.480 give you the power to
01:41:26.159 veto appointment of the president when
01:41:28.159 you don't have that power
01:41:29.760 but the moment you allow that you know
01:41:33.360 in the future the president will be
01:41:34.880 bound by that so here
01:41:38.080 the senate allowed the president to
01:41:40.400 unilaterally terminate a treaty but it
01:41:42.639 should not have allowed it and it
01:41:44.400 realized its mistake that's why
01:41:47.280 they
01:41:48.239 passed a resolution that
01:41:50.159 uh
01:41:51.199 in the next uh treaty city that they
01:41:53.840 ratified they put the condition present
01:41:56.480 can only withdraw upon consent they also
01:41:59.440 went to the supreme court when the
01:42:00.800 president again tried to terminate
01:42:03.280 another treaty
01:42:05.360 so
01:42:06.560 i would fault the senate here
01:42:09.440 the senate would have stood this ground
01:42:11.119 at the very start because there is
01:42:13.199 always this
01:42:14.400 tension among the branches of government
01:42:16.639 each one trying to usurp the power of
01:42:19.360 the other
01:42:20.880 they should have stood their ground
01:42:22.480 immediately but unfortunately they did
01:42:24.800 not they
01:42:26.080 they
01:42:27.119 they did it when the president uh tried
01:42:29.920 to abrogate another treaty unilaterally
01:42:33.440 so but just before that justice i'm very
01:42:35.199 sorry let me hear if a professor raj has
01:42:37.679 thoughts on the question
01:42:41.440 okay thank you thank you mike the
01:42:43.280 question was on the susceptibility of
01:42:45.360 the court
01:42:46.480 to backlash the ibp engages in public
01:42:49.360 interest litigation we've filed several
01:42:51.520 cases in the supreme court this one the
01:42:53.199 supreme court decides on the basis of
01:42:54.880 law without regard to backlash whether
01:42:57.520 public or political
01:42:59.679 all right thank you professor fina
01:43:02.560 yeah um before you ask the question i
01:43:05.119 may i just acknowledge the presence of
01:43:07.199 our former ombudsman former
01:43:10.239 uh supreme court associate justice
01:43:12.480 conchita carpio morales we she she
01:43:14.960 wasn't
01:43:15.920 in
01:43:16.719 um
01:43:17.679 when we called her name earlier but
01:43:19.600 she's now in i see her good morning
01:43:21.600 justice chip
01:43:23.119 good morning finna i'm sorry he i'm not
01:43:25.920 that techy it took a maid to help that's
01:43:28.480 all right
01:43:31.040 that's all right we're glad you're here
01:43:32.560 with us justice it adds to the
01:43:34.800 powerhouse of experts that we have this
01:43:37.199 morning uh you were saying that justice
01:43:40.639 vivi was raising his hand yes uh yes
01:43:43.360 you can ask our
01:43:44.880 esteemed professor
01:43:47.040 justice vivi sir you are raising your
01:43:49.040 hand sir please feel free to comment
01:43:51.760 okay
01:43:53.440 thank you very much
01:43:55.679 to me the
01:43:56.880 question is
01:43:59.119 was there a decision
01:44:01.600 in this case
01:44:04.159 is pangilidan
01:44:07.040 a decision
01:44:09.119 to me it is not a decision it is an
01:44:12.000 advisory opinion
01:44:14.800 there was neither a case according to
01:44:17.440 the supreme court
01:44:28.960 and yet somewhere in this decision they
01:44:31.119 said what is a mood case is like this
01:44:33.840 all right
01:44:35.119 so
01:44:37.040 and what did the supreme court say in
01:44:39.360 its advisory opinion
01:44:41.679 we want to give
01:44:43.520 the guidelines
01:44:45.119 for future action
01:44:46.960 and they're to be found in the last
01:44:49.440 three paragraphs of that 100 page
01:44:53.920 decision
01:44:56.320 if you look at them
01:44:57.840 that is the advisory opinion and that is
01:45:00.320 all that it amounts to
01:45:03.040 now let me begin
01:45:05.440 motness
01:45:06.880 muttness is a technical term in
01:45:08.960 constitutional law it means there was a
01:45:12.000 case or a controversy in the beginning
01:45:14.960 but some super winning event
01:45:17.520 or
01:45:18.400 the case or controversy ceases
01:45:22.080 so that courts will not decide that
01:45:24.719 generally speaking
01:45:26.880 of course there are exceptions to the
01:45:29.040 mootness doctrine
01:45:31.679 number two
01:45:34.800 the court said
01:45:37.040 not one of the parties had standing
01:45:40.639 to question the validity of the
01:45:42.960 president's withdrawal
01:45:44.880 from the rome statue
01:45:47.199 they did not suffer an injury
01:45:51.119 the court
01:45:52.239 rather the senate
01:45:53.920 which probably could have raised the
01:45:56.320 question
01:45:57.280 did not raise it and why should we take
01:45:59.440 it up
01:46:01.360 and
01:46:02.719 for example
01:46:04.159 said
01:46:06.080 the individuals
01:46:08.000 senator joseph proposal
01:46:10.560 never adopted by any
01:46:13.040 uh by the by the senate
01:46:16.320 so that we cannot take that
01:46:18.880 as the position of the senate
01:46:21.920 all right so there was no
01:46:24.840 controversy there was no case
01:46:28.639 it arrived in the court still born
01:46:32.400 so what is the court going to do
01:46:35.360 nothing
01:46:37.040 so
01:46:37.920 actually it was just an advisory opinion
01:46:42.080 and that's very important why is it very
01:46:45.280 important
01:46:47.360 it might have some useful
01:46:49.920 purposes but not for this purpose
01:47:01.040 uh mentioned article eight of the civil
01:47:03.600 code
01:47:04.480 which makes decisions of the supreme
01:47:06.400 court
01:47:07.280 part and parcel of the judicial system
01:47:10.639 of the legal system
01:47:13.119 now that cannot be part of the legal
01:47:15.679 system
01:47:16.800 you cannot invoke it
01:47:18.560 you cannot bind the supreme court to it
01:47:21.600 you cannot even say
01:47:23.520 in the case of pangilinan versus
01:47:26.480 cayetano and you said this the court
01:47:28.560 will not be bound by its own decision
01:47:31.280 it's not a what they call precedent
01:47:34.800 they will not be bound by their decision
01:47:38.159 nothing it was just an expression of
01:47:40.400 opinion
01:47:41.440 no better than the opinion expressed
01:47:44.080 here in this forum
01:47:46.880 that's all that's all this value and
01:47:49.600 this is important
01:47:51.280 because
01:47:52.400 shortly after the release
01:47:54.639 of this decision
01:47:56.960 rendered sometime in january or february
01:48:00.080 but
01:48:00.960 made public only
01:48:02.840 recently
01:48:04.560 the newspapers came out with the
01:48:07.280 editorial
01:48:09.119 supreme court says
01:48:11.199 that the
01:48:12.560 president
01:48:14.159 cannot
01:48:15.360 withdraw
01:48:17.119 statue from statue
01:48:18.960 without the consent of the senate
01:48:21.520 look at that
01:48:22.880 and yet that was not a ruling
01:48:25.360 even the supreme court in its advisory
01:48:28.080 opinion did not say that
01:48:30.800 what it said is
01:48:32.480 there are instances where the president
01:48:34.800 can withdraw
01:48:36.239 but there are many
01:48:38.239 instances where he cannot withdraw
01:48:40.880 without the concurrence of the senate
01:48:45.040 so there are many contradictions in its
01:48:47.440 own decisions rather opinion
01:48:50.960 so to me
01:48:52.320 it's just an advisory opinion
01:48:54.960 and let us take it like that
01:48:57.520 thank you
01:48:58.840 justice guidance
01:49:00.480 of
01:49:01.360 benson ball as the supreme court always
01:49:03.920 says thank you thank you so much justice
01:49:06.480 eve it's nice to hear your comments um
01:49:09.360 and not too far from what has been said
01:49:11.840 by our speakers actually so at this
01:49:13.760 point we do want to call see i see i'm
01:49:16.320 sorry i see professor agabin raising his
01:49:19.040 hands sir yes uh uh professor fina
01:49:21.040 before dean again
01:49:22.719 uh justice
01:49:25.280 manifested his intention to ask so we'll
01:49:28.159 do justice judge
01:49:30.719 and then
01:49:31.840 after
01:49:33.280 thank you so much
01:49:35.199 i actually this is this is a comment i
01:49:37.760 have uh written on it and it's about to
01:49:40.800 be published um i agree with justice
01:49:44.000 mendoza uh in fact it strikes me i'm so
01:49:47.520 glad justice mendoza noted that the
01:49:50.320 decision was announced
01:49:52.159 first
01:49:53.119 like in a press conference it was
01:49:55.199 commented already by the papers and it
01:49:57.599 took another three months before it was
01:49:59.679 formalized in a decision i find actually
01:50:02.080 this practice of the court rather
01:50:04.080 troubling and this is not the first time
01:50:06.480 that
01:50:07.440 that it happened and i think this goes
01:50:10.080 into the point raised by mike uh it is
01:50:13.119 part of the court's positioning itself
01:50:15.920 in public discourse the um decision by
01:50:19.199 press release which and which uh pre
01:50:22.639 which comes sometime before the actual
01:50:26.080 release of the fully reasoned uh
01:50:28.080 decision
01:50:29.280 i would like to go back to the point on
01:50:31.280 moodness
01:50:32.400 well i'm struck by what the court said
01:50:34.960 the petitions were moved at the time
01:50:37.920 they were filed
01:50:39.599 so my question is
01:50:41.840 if it was too late
01:50:44.239 when it was filed
01:50:45.840 what would have been on time
01:50:48.239 in other words
01:50:49.520 if the president's act of withdrawing
01:50:52.480 from the statute says that at that
01:50:55.280 moment there's nothing more that the
01:50:57.199 court can do
01:50:59.599 when could the petitioners have
01:51:00.960 challenged
01:51:02.239 anything
01:51:03.599 before the president's act it would have
01:51:05.599 been again a mere press release or a
01:51:08.320 press statement so if it is challenged
01:51:11.760 by the senators or by the coalition
01:51:14.159 the
01:51:15.199 philippine combination for the icc if
01:51:17.280 they filed the challenge
01:51:19.199 right after the press release what will
01:51:21.760 they challenge before the court and what
01:51:23.599 will the court do
01:51:25.280 declare it as an unconstitutional press
01:51:27.199 release
01:51:28.239 uh for me
01:51:30.080 by the court's formulation here
01:51:34.400 the case
01:51:35.599 was moved
01:51:37.119 exactly as the court says
01:51:39.199 or if they filed the petitions ahead of
01:51:42.639 the president's statement it would have
01:51:44.880 been unripe for adjudication
01:51:47.360 there would have been
01:51:48.880 in either case no acts
01:51:51.360 that
01:51:52.400 the supreme court has the power to
01:51:54.400 review the constitutionality of treaties
01:51:57.199 and international agreements
01:51:59.360 if at the moment the president withdraws
01:52:02.480 from a treaty the case is already moot
01:52:05.440 and academic
01:52:06.880 then the
01:52:08.080 uh
01:52:09.520 the court will never have any occasion
01:52:12.320 to exercise its constitutional power and
01:52:15.280 it renders a negatory that an entire
01:52:17.679 power an entire safeguard the separation
01:52:20.320 of powers mentioned by justice scarcio
01:52:22.800 is is basically erased by this uh
01:52:25.760 reading of the of the witness doctrine
01:52:28.080 let me close on that point mike thank
01:52:29.679 you so much thank you judge
01:52:32.800 we will hear the thoughts of our
01:52:34.400 speakers perhaps later on the comments
01:52:36.159 of judge raul but for now let's hear the
01:52:38.400 question from dean agave
01:52:49.840 in your own mutin
01:52:57.760 hi dean dinpick dean you are unmute
01:53:01.760 your own nude please unmute yourself
01:53:03.760 mean
01:53:08.960 yeah
01:53:10.159 this is in connection with the comments
01:53:12.159 of
01:53:13.440 justice mendoza and professor
01:53:16.159 pangalan
01:53:18.000 and
01:53:19.679 perhaps this question should also be
01:53:21.760 addressed to
01:53:23.599 professor de certo
01:53:28.239 because
01:53:31.199 while i agree that
01:53:34.080 indeed
01:53:36.080 under the
01:53:37.760 case cited by
01:53:39.520 professor de certof which is the
01:53:42.239 the castro ruling of the supreme court
01:53:45.520 we are a common low country i mean we
01:53:47.760 are receiving no country
01:53:49.840 and therefore
01:53:51.679 we adopt the
01:53:53.280 legal method approach of
01:53:56.320 textual interpretation
01:53:59.520 that
01:54:00.800 it is only facts
01:54:03.520 plus conclusion
01:54:06.239 which constitutes a president
01:54:10.480 that is the
01:54:11.760 civil law approach to
01:54:16.159 becoming a
01:54:18.400 or
01:54:19.119 considering a president
01:54:22.880 however
01:54:24.560 the premise of professor de certo
01:54:27.920 that
01:54:29.360 we are a civil law country
01:54:32.080 essentially
01:54:34.320 may stand some
01:54:37.560 reconsideration
01:54:39.280 because
01:54:41.360 we are not strictly a civil law country
01:54:45.199 we are as my book i said mysticial
01:54:48.239 system
01:54:49.679 and
01:54:50.480 constitutional law
01:54:53.119 as well as international law
01:54:55.679 out of common law origin
01:54:58.960 and under the common law formula for
01:55:01.520 this
01:55:02.639 determining whether a diffusion of the
01:55:05.199 court
01:55:06.719 is
01:55:08.320 presidential or not
01:55:10.960 also constitute
01:55:13.920 precedent
01:55:15.679 for instance
01:55:17.760 in the case of marbury versus madison
01:55:22.000 the case was also moved
01:55:24.480 because
01:55:25.599 the petitioners in marbury filed a wrong
01:55:29.199 petition
01:55:30.880 and the supreme court of the u.s could
01:55:32.480 have just dismissed the case
01:55:35.360 but
01:55:36.239 they went on to decide
01:55:38.960 the general principle of
01:55:42.719 judicial review
01:55:44.560 under the concept of separation of
01:55:46.400 powers
01:55:48.000 so
01:55:49.280 i believe that
01:55:51.599 with respect to
01:55:53.239 interpretations of
01:55:55.199 constitutional provisions
01:55:58.560 as well as international law and
01:56:00.800 international treaties
01:56:04.880 the
01:56:06.080 common law approach
01:56:08.639 should be adopted which is that
01:56:11.280 the formula is that
01:56:14.560 general principles
01:56:17.280 regardless of the declaratory portion
01:56:21.599 have presidential value
01:56:26.400 okay thank you uh dean pick we hear from
01:56:29.920 professors gatmaitan and duchette
01:56:32.320 the comments on the last two comments
01:56:34.560 i think this one is for diane
01:56:36.719 okay um
01:56:38.480 thank you very much dina gavin it's
01:56:40.239 wonderful to see you i cite your book
01:56:42.639 and indeed we are a mixed jurisdiction
01:56:45.199 in the philippines
01:56:46.560 but one of the things that i will take
01:56:49.040 um a different view on is how the
01:56:51.440 supreme court selects foreign sources
01:56:54.960 and determines them to have presidential
01:56:57.440 value what's ironic here is that while
01:57:01.360 the supreme court says that a yale law
01:57:04.480 journal article by harold cole
01:57:07.199 and a case youngstown versus youngstown
01:57:10.960 versus sawyer is somehow decisive in so
01:57:14.560 far as import presidential value and
01:57:16.960 that's a problem and if we have a theory
01:57:20.000 of precedent that is consistently at
01:57:22.880 least fairly with you completely
01:57:25.440 dean if
01:57:27.119 we had a court that was conscious of the
01:57:30.880 effect of precedent and thus was more
01:57:33.520 careful
01:57:34.480 in how it elucidates and elaborates its
01:57:37.920 reasoning then perhaps we would not be
01:57:40.800 in a situation where one case there's
01:57:43.840 different appreciation of what is a
01:57:46.639 binding precedent and what is relevant
01:57:49.199 as opposed to other cases why is the
01:57:51.199 south african practice of the
01:57:53.440 constitutional court of south africa
01:57:55.360 irrelevant they said it was because they
01:57:57.199 have a parliamentary system
01:57:59.440 why do they assume that the u.s court
01:58:01.760 decision is always going to be relevant
01:58:04.480 when the checks and balances in the u.s
01:58:07.040 constitutional framework as you know
01:58:09.040 dean are not exactly the same thing we
01:58:11.199 don't have a federal system of
01:58:12.719 government there are different checks
01:58:14.480 and balances within the u.s constitution
01:58:17.360 but if we're aiming for consistency i
01:58:20.080 very much agree with justice vivi that
01:58:22.719 perhaps the way to look at this is to
01:58:24.800 look at
01:58:26.080 everything except two or three pages in
01:58:28.239 this decision as an advisory opinion
01:58:40.400 thank you dr duchetta sorry we are
01:58:42.080 monitoring questions so i was reading
01:58:44.080 some of them i think final we have a
01:58:46.239 question from
01:58:48.639 a
01:58:49.599 the secretary of the senate committee on
01:58:51.760 foreign relations
01:58:53.280 uh and she wants guidance on
01:58:56.880 what to make of this decision perhaps
01:58:58.400 the
01:59:00.400 the question that she really wants
01:59:02.320 answered is
01:59:03.599 can the speakers take a position on this
01:59:05.360 concurrent concurrence issue i mean if
01:59:07.760 it were a
01:59:09.280 uh legal issue really
01:59:11.840 what's your what are your thoughts on
01:59:13.840 whether the senate should concur in
01:59:16.560 withdrawals from treaty regimes
01:59:20.159 justice scorpio perhaps to start and
01:59:22.400 then professor gatmaitan
01:59:27.280 as i said this is a battle for turf if
01:59:30.320 the senate does not assert its
01:59:32.639 prerogative
01:59:34.239 to concur it will lose its prerogative
01:59:36.560 to concur
01:59:38.480 so
01:59:39.920 there is a constant battle among the
01:59:41.520 branches of government and the moment
01:59:43.840 you concede
01:59:46.159 your prerogative to another branch
01:59:48.560 that could bind you in the future
01:59:52.080 so
01:59:52.880 i think
01:59:53.840 what the senate should do is to say
01:59:56.400 that the president can never withdraw
01:59:59.840 unilaterally a treaty without the
02:00:02.400 consent of the senate they should be
02:00:04.560 very categorical about that
02:00:08.080 and to preserve their prerogative in
02:00:10.960 case of future
02:00:12.800 cases filed with the court the court
02:00:14.560 will take
02:00:15.520 notice of that that that's the position
02:00:18.159 of the senate very categorical
02:00:20.480 but the moment you
02:00:22.719 waffle the moment you
02:00:24.560 show any doubt about your prerogative
02:00:27.119 you will lose it
02:00:28.400 and this is exactly what happened here
02:00:30.719 thank you
02:00:31.679 thank you justice we will have one round
02:00:33.840 of answers uh for all the speakers and
02:00:35.840 then one more question that fina fina
02:00:38.320 will
02:00:39.199 read to us because that's the only time
02:00:41.599 we have left uh we we will go to dr
02:00:44.320 dicierto and then professor
02:00:46.320 dan after
02:00:48.320 i will draw a distinction between a
02:00:50.880 situation of joining a treaty as opposed
02:00:53.760 to withdrawing from a treaty especially
02:00:55.920 a treaty such as the rome statute
02:00:58.960 because we haven't discussed it fully
02:01:00.880 yet here but what are the consequences
02:01:03.679 in so far as any third party rights are
02:01:06.480 concerned the rome statute provides
02:01:09.199 access to victims to participate in the
02:01:12.320 procedure independent of the philippine
02:01:15.199 government's position
02:01:16.960 victims have access to the procedures of
02:01:19.440 the rome statute
02:01:21.199 that creates rights
02:01:23.040 a vested right to a remedy before that
02:01:25.760 remedy could be taken can it just be
02:01:28.480 taken by a president
02:01:30.480 does it not in fact blend greater
02:01:33.280 urgency to have a co-equal branch of
02:01:36.320 government the legislature weigh in and
02:01:39.360 concur before stripping vested rights i
02:01:42.400 mean that's something that
02:01:45.040 probably the pangilinan decision does so
02:01:47.440 much to muddle
02:01:49.280 by equating r a 98 51 as somehow the
02:01:53.040 equivalent of the rome statute when it
02:01:55.360 is not
02:01:57.360 thank you dr duchette professor dan
02:02:00.320 i agree with justice scorpio and dr
02:02:02.880 deserto and i think there's room for us
02:02:05.760 to make that kind of a ruling
02:02:07.760 you know that that that strong ruling
02:02:09.679 because my my research assistants and i
02:02:11.920 are examining all the constitutions of
02:02:14.159 the world and the fact is that most of
02:02:17.199 the constitutions are written the way
02:02:18.639 ours is only the issue it is open-ended
02:02:21.840 it doesn't say
02:02:23.599 whether uh senate concurrence is
02:02:25.520 required for a withdrawal
02:02:28.560 so this would have been that opportunity
02:02:31.199 for us you know to protect the vested
02:02:34.239 rights as diane was saying you know to
02:02:36.480 be more categorical in our ruling as
02:02:38.800 justice scarpio said
02:02:40.480 uh and i think we let that moment slip
02:02:44.800 all right uh thank you professor then
02:02:47.119 professor raj your thoughts
02:02:51.920 um i guess i need to reiterate the
02:02:54.560 position of the ibp in the case
02:02:57.440 uh shared powers there is actually an
02:03:00.320 implied requirement for concurrence
02:03:04.159 thank you uh professor fina uh we're
02:03:06.639 down to our last question
02:03:11.360 sorry you are on new
02:03:12.840 tina yes it's a very proud question from
02:03:16.639 uh
02:03:17.679 uh
02:03:18.560 one of our participants
02:03:20.719 if the supreme court's decision in the
02:03:23.199 pangolin case is not properly a decision
02:03:26.880 but simply an advisory opinion
02:03:30.480 then can a new petition on the same
02:03:32.320 matter be filed again
02:03:37.760 who do we ask
02:03:39.520 we can post the question to all of them
02:03:41.440 as and all the speakers to end the
02:03:44.480 question portion
02:03:46.239 um
02:03:47.679 we'll start with professor raj first and
02:03:50.960 then we end with justice scarf
02:03:54.000 well yes thank you that is uh that's a
02:03:56.000 good point and the hope is that uh the
02:03:58.320 supreme court will take a different
02:03:59.760 approach this time allowing the parties
02:04:01.760 to proceed and to decide the case on the
02:04:03.920 merits
02:04:06.560 uh dr ducharta
02:04:11.040 i wouldn't say exactly the same petition
02:04:14.079 um one has to be mindful of what the
02:04:16.400 court has said in terms of its lenses of
02:04:19.119 what they think happened here they think
02:04:21.360 for example that the
02:04:23.360 withdrawal is irreversible you'd have to
02:04:25.599 anchor the case or controversy on
02:04:27.520 something else something
02:04:29.520 that continues the deprivation of rights
02:04:31.840 that continues as a result of a
02:04:33.679 withdrawal that neither conformed to
02:04:35.760 constitutional process or
02:04:38.639 was not consistent with the philippines
02:04:40.560 treaty obligations or maybe
02:04:43.040 maybe petitions should start thinking
02:04:45.119 about to what extent is the forces
02:04:47.840 suggest
02:04:49.040 i find that interesting because in the
02:04:50.960 1987 constitution which has an expanded
02:04:54.320 judicial review clause
02:04:56.480 the court is saying that they will not
02:04:58.400 exercise jurisdiction relying on united
02:05:01.440 states precedent which doesn't have the
02:05:04.079 grave abuse of discretion expanded
02:05:06.000 judicial review clause
02:05:08.159 that probably is a structural or
02:05:10.560 teleological approach to the
02:05:12.719 constitutional interpretation but the
02:05:14.719 theory has to change
02:05:16.480 and i'm wary of a supreme court that
02:05:18.880 gives complete deference to a president
02:05:22.400 on all matters of foreign affairs and
02:05:24.560 foreign policy if there's one thing that
02:05:26.320 we've learned here in the united states
02:05:28.800 giving untrammeled discretion to a
02:05:31.199 president without legislative oversight
02:05:34.239 is a recipe for disaster
02:05:37.119 thank you dr duchette professor
02:05:38.800 gatmaitan
02:05:40.560 um i agree uh we can't have the exact
02:05:43.840 same kids because they were you know
02:05:46.560 the ruling was that the withdrawal had
02:05:49.199 been completed that's the reason why
02:05:51.040 it's moved however if i understood the
02:05:53.199 question to mean that what about future
02:05:55.199 cases and other treaties
02:05:58.400 you know uh
02:05:59.840 will this case have an impact on other
02:06:02.639 and other treaties uh there's a chance
02:06:05.440 that the supreme court
02:06:07.280 will abandon everything they said in 98
02:06:10.159 pages and say well technically
02:06:12.400 you know because nobody liked what we
02:06:14.079 said that's really just obituary
02:06:18.079 right and then it gives them an
02:06:19.679 opportunity to to to give another you
02:06:22.400 know to make another decision uh
02:06:24.719 preferably one that makes us uh all
02:06:27.280 happy
02:06:33.760 so a future case can really change the
02:06:37.040 the tenor of uh this the scholars
02:06:40.480 thank you professor dan justice scarpio
02:06:44.960 justice you're new
02:06:46.800 there's actually a pending case a
02:06:48.960 similar case the vfa
02:06:53.119 although the president has withdrawn the
02:06:55.599 cancellation
02:06:57.599 this could be an opportunity for the
02:06:59.599 supreme court to clarify the issues
02:07:02.159 uh that we have raised here
02:07:05.119 uh of course
02:07:06.400 because supreme court can always say
02:07:08.159 that it's smooth also
02:07:10.719 but i think
02:07:15.199 those who want to question the
02:07:17.599 uh
02:07:18.719 the uh
02:07:20.560 the pangelina decision can uh
02:07:24.000 intervene in that case or can
02:07:26.560 those who are presently involved in that
02:07:28.639 case can
02:07:30.159 raise and raise new questions
02:07:32.880 because it could be clarified in this
02:07:34.880 vfa case
02:07:36.880 but of course the court can always say
02:07:38.960 that it's smooth also so we'll have to
02:07:41.920 wait for a new case
02:07:43.440 and uh
02:07:45.199 that i think there will be new cases
02:07:47.440 because uh
02:07:49.119 this decision
02:07:51.280 uh
02:07:53.280 could be or some taxpayers that uh
02:07:56.719 the uh tax treaties uh
02:07:59.280 have not really taken effect because
02:08:01.760 there are no mandatory legislation i
02:08:04.159 mean there will be
02:08:05.760 many cases involving this this this will
02:08:09.599 spawn uh
02:08:11.040 future cases involving the same issue
02:08:13.440 i'm sure thank you
02:08:15.040 thank you very much uh justice scorpion
02:08:17.199 to all our uh speakers who answered all
02:08:20.000 the questions we didn't weren't able to
02:08:22.000 ask all of them but we'll send some of
02:08:23.599 them to you if you'd like
02:08:25.360 and we're sorry uh that we have limited
02:08:27.520 time maybe we can
02:08:29.119 mike maybe we can ask our speakers for
02:08:30.960 their final words if any uh right um so
02:08:35.280 are there any final comments we that the
02:08:37.760 speakers would like to say
02:08:40.320 i just would like to take the
02:08:42.079 opportunity to thank the up college of
02:08:43.920 law uh for letting me
02:08:46.560 pop in uh it's 11 o'clock at night over
02:08:49.679 here i'm
02:08:51.040 having a very deceptive background to
02:08:53.520 pretend that it's the morning but it's
02:08:55.840 always great to listen to my mentors my
02:08:58.560 former colleagues my
02:09:00.320 the entire ecosystem of the u.p college
02:09:02.800 of law remains as intellectually robust
02:09:05.199 and inspiring as it has and to professor
02:09:08.480 molo who asked me to give a shout out
02:09:10.800 i'm giving him a shout out right now
02:09:13.360 thank you thank you dr duchette i'm also
02:09:15.760 giving professor moda a shout out
02:09:17.360 because he's also one of the
02:09:19.199 organizers of this malcolm lecture uh
02:09:22.000 before i turn it over to fina to
02:09:23.920 introduce our
02:09:25.760 dean i do want to make a couple of
02:09:28.079 announcements the first is that there is
02:09:29.679 a link to an evaluation so that we can
02:09:32.320 be better the next time
02:09:34.159 please
02:09:35.360 click the link and answer the survey so
02:09:36.880 you can also get the certificate of
02:09:38.320 attendance to the webinar and second we
02:09:40.800 ask our speaker introduce the closing
02:09:43.119 okay so we now formally close our
02:09:45.679 webinar today we are really grateful and
02:09:48.400 thankful to our powerhouse of common
02:09:51.599 three
02:09:52.400 aside from being dean of the college
02:09:54.400 professor vistan teaches constitutional
02:09:56.880 law
02:09:58.000 civil procedures special proceedings
02:10:00.400 transportation and public utilities
02:10:03.040 torts and damages supervised legal
02:10:05.280 research and law practicum in the master
02:10:08.079 of laws program he teaches international
02:10:10.320 anti-corruption compliance he also
02:10:12.719 concurrently serves as director of the
02:10:14.639 u.p office of legal aid
02:10:17.040 dean vistan holds a master of laws
02:10:19.040 degree from yale law school and is a
02:10:21.280 candidate
02:10:22.400 for the degree
02:10:23.760 of doctor of science of law in the same
02:10:26.239 university aside from his academic
02:10:28.639 engagements with the university dean
02:10:31.040 carlo is also a published author and a
02:10:33.840 litigation and election lawyer ladies
02:10:36.560 and gentlemen let us please welcome our
02:10:38.480 dean edgardo paulo elvistan
02:10:44.000 thank you fina and mike
02:10:48.000 the decision in pangilinan versus
02:10:50.400 cayetano reminded me of a very simple
02:10:53.199 but profound statement in the ponenshah
02:10:56.880 of justice george malcolm in the 1919
02:11:00.320 case
02:11:01.280 of villa vicenzo versus lukbang
02:11:04.400 and that statement is
02:11:06.639 and i quote
02:11:07.920 law
02:11:08.960 defines power
02:11:12.400 in its simplest sense
02:11:14.320 this statement tells us how the
02:11:15.920 different power structures
02:11:18.800 the importance of the law in this sense
02:11:21.040 is quite evident
02:11:24.000 a rather awkward way however i was
02:11:26.000 reminded of this statement of justice
02:11:28.000 malcolm by the supreme court decision we
02:11:30.079 just tackled
02:11:31.679 because it showed that what justice
02:11:33.760 malcolm said
02:11:35.280 is not exactly or absolutely true
02:11:39.199 while the law may indeed define power
02:11:42.400 the law does not do so all the time
02:11:45.520 in other words the law is not always as
02:11:48.159 precise
02:11:49.520 and exhaustive as desired
02:11:52.560 how and how this should be done
02:11:54.880 then the central
02:11:57.599 then again it is in those instances
02:11:59.599 wherein the law does not define power
02:12:02.560 when the larger significance of justice
02:12:04.639 malcolm statement emerges
02:12:07.599 if the function of law is to define
02:12:09.679 power
02:12:10.880 then the one who makes the law holds the
02:12:13.360 key to power
02:12:15.840 the question then becomes who holds this
02:12:18.159 key
02:12:20.159 justice malcolm's insight comes full
02:12:22.159 circle as we now confront as we as we
02:12:24.639 must now confront
02:12:26.159 the question who has the power to make
02:12:28.560 law
02:12:30.800 notwithstanding the concept of
02:12:32.639 legislative power being vested in
02:12:34.560 congress
02:12:35.840 a deeper
02:12:37.040 historical analysis of the system of
02:12:38.960 government of our country will reveal
02:12:41.199 the practical truth
02:12:43.119 that each of the three traditional
02:12:45.280 branches of government
02:12:46.960 end treaty making
02:12:49.119 and the judiciary through decision
02:12:51.199 making
02:12:53.199 each of the branches of our government
02:12:55.280 creates rules or laws that define
02:12:57.840 power
02:13:00.239 at a higher but more basic level
02:13:02.239 involving allocation lloyds island
02:13:04.960 the branch of government
02:13:06.800 angelina versus cayetano this depicts
02:13:10.560 this reality
02:13:13.920 finding themselves in one spectrum and
02:13:16.239 thereby define or claim power to address
02:13:18.639 the situation
02:13:21.040 from what we saw
02:13:22.719 the executive acted or spoke first and
02:13:25.520 in a very loud manner
02:13:27.440 through its withdrawal from their own
02:13:29.119 statute
02:13:31.599 the
02:13:32.480 the legislature or the senate in
02:13:34.239 particular
02:13:35.360 chose to be silent
02:13:37.040 but perhaps it was through such silence
02:13:39.280 or inaction
02:13:40.639 that it was playing its part in this law
02:13:42.800 making or power defining moment
02:13:46.960 when called upon to address the
02:13:48.400 situation and make it smart in this
02:13:50.400 constitutional law making exercise
02:13:53.760 the supreme court in my view
02:13:56.239 essentially gave its imprimatur to the
02:13:58.320 executive's action
02:14:01.040 the language and approach use may may
02:14:03.920 ostensibly convey the idea that no
02:14:06.639 binding precedent is being laid down in
02:14:09.199 panilina versus cayetano which as we all
02:14:12.000 know raises a number of questions in
02:14:13.840 itself
02:14:15.599 but the practical reality is that power
02:14:17.840 was defined
02:14:19.440 and law was made
02:14:21.119 through this interaction of arp in law
02:14:24.480 the supreme court's decision in
02:14:25.760 panalinan versus cayetano and the events
02:14:28.800 leading to it show what in my opinion
02:14:31.679 is a more realistic view
02:14:34.079 that is
02:14:35.440 that law and politics are not
02:14:37.760 incompatible antagonists
02:14:40.320 that must be kept in separate men to
02:14:42.400 balance and complete the other
02:14:45.599 indeed while there is much significance
02:14:47.360 in justice malcolm's statement that the
02:14:49.199 law defines power
02:14:51.360 it leaves an equally important dimension
02:14:53.679 and said
02:14:54.880 that is
02:14:56.000 that power creates and maintains law
02:15:00.400 these closing remarks are not meant to
02:15:02.000 be a sad or foreboding commentary about
02:15:04.480 the state of our laws
02:15:06.079 our government or our society
02:15:08.960 far from this
02:15:10.239 the message i wish to convey is one of
02:15:12.639 open-mindedness and affirmation
02:15:16.480 in a democracy where we value
02:15:18.079 maintaining a marketplace of ideas
02:15:20.800 we must accept the fact that this will
02:15:22.719 always be a marketplace of advocacies
02:15:25.280 and political agendas
02:15:28.000 in an arena wherein advocacies are or
02:15:30.320 agendas clash
02:15:31.920 and the situation calls for only one to
02:15:34.320 succeed at the end of the day
02:15:37.440 setbacks
02:15:39.119 do not extinguish the cause of the side
02:15:41.599 that does not prevail
02:15:44.079 for as long as people advocate and fight
02:15:46.000 for what they believe in
02:15:47.760 our democracy will be a live regard let
02:15:50.320 us not forget that the traditional
02:15:51.920 branches of our republican form of
02:15:53.760 government
02:15:54.880 are not the only movers and shakers so
02:15:57.760 to speak
02:16:00.000 recall the beginning
02:16:01.679 of our charter
02:16:03.760 we
02:16:04.480 the sovereign filipino people
02:16:08.159 with that and on behalf of wp college of
02:16:10.239 law let me thank those to whom we owe
02:16:12.400 this morning's insightful discussion
02:16:14.880 justice antonio t carpio professors raj
02:16:17.360 palacios dangat maitan and dayan ducerto
02:16:20.960 thank you very much for your time and
02:16:22.639 valuable perspectives
02:16:24.719 we hope to see and hope from you
02:16:26.960 hope to see and hear from you all again
02:16:28.800 soon including those who chimed in among
02:16:31.119 the panelists
02:16:33.200 we also thank the institute of
02:16:34.718 international legal studies and the
02:16:36.478 information and publication division of
02:16:38.718 the up law center for their quick and
02:16:40.879 responsive action to the call we got to
02:16:43.599 stage this
02:16:44.840 forum special thanks of course goes to
02:16:47.359 the justice george a malcolm foundation
02:16:49.599 for this initiative
02:16:51.280 for bringing to us this idea to foster
02:16:53.519 discussion and debate on a recent
02:16:55.760 development in our legal political and
02:16:58.000 international landscape
02:17:00.318 the foundation's vigilance is
02:17:02.160 commendable and something that should be
02:17:04.478 emulated
02:17:06.160 finally we thank all those who joined
02:17:07.840 and watch this again we hope you enjoyed
02:17:09.760 the exchange of ideas we just we just
02:17:12.160 witnessed witness
02:17:15.120 before we end i just want to ask you
02:17:16.799 wasn't that such fun
02:17:18.879 didn't you miss it yes it was something
02:17:20.799 like that
02:17:22.080 we should have more of this as in fact i
02:17:24.558 am sure that the trustees of the
02:17:26.398 foundation would like to revive
02:17:29.439 the tradition of holding malcolm
02:17:31.920 lectures i spoke to justice vivi mendoza
02:17:34.398 and he said that he's he has a lot of
02:17:37.439 memories of what used to i'm and in fact
02:17:41.200 he told me that during the time of uh uh
02:17:44.398 justice feliciano that's the justices of
02:17:47.679 the sun uh as we read founder himself
02:17:50.318 justice george malcolm
02:17:52.160 thank you very much to thank you
02:17:54.000 everybody
02:17:55.359 who uh made this uh
02:17:57.599 revival it's success for a part two
02:18:00.398 right so to our lovely audience
02:18:02.478 definitely
02:18:03.679 right this has been understanding the
02:18:05.920 president's treaty powers senate
02:18:07.920 concurrence invested rights under the
02:18:10.240 recent pangilinan vs cayetano ruling a
02:18:12.718 malcolm lecture co-presented by the u.p
02:18:15.519 college of law the u.p institute of
02:18:17.599 international legal studies and the
02:18:19.760 justice george balcom foundation thank
02:18:21.840 you very much and good noon to everyone
02:18:27.840 thank you mike thank you
02:18:34.209 [Music]
02:18:49.040 you