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MEL STA. MARIA | Dismissal of the Duterte Impeachment, ICC jurisdiction

InterAksyon logo InterAksyon 3/18/2017 Atty. Mel Sta. Maria

Atty. Mel Sta. Maria is the Dean of the Far Eastern University Institute of Law and Professor at the Ateneo de Manila School of Law.

The Philippines is bound by the Rome Statute, the treaty creating the International Criminal Court. Our Constitution provides that public international law, which includes a treaty, is part of the law of the Philippines. No one is above the law.

Article 17 of the Rome Statute provides that the ICC has jurisdiction to try a case if it is found out that "a state is unwilling or unable genuinely to carry out the investigation or prosecution" against a respondent/accused. And this is true even if an investigation has already been made with the state deciding not to prosecute but it is shown that, again, there was unwillingness or inability of the state to genuinely prosecute.

There is "unwillingness" or "inability" when it is proven that the national decision not to prosecute "is for the purpose of shielding the accused from criminal responsibility" for crimes under the jurisdiction of the ICC, or when the investigation or proceedings are "being conducted not independently or impartially" in a manner "which is inconsistent with the intent to bring the person to justice."

Under our Constitution, the only way to effectively investigate and prosecute a President is by impeachment proceedings in the House of Representatives and then a hearing in the Senate.

An impeachment complaint was filed by Congressman Gary C. Alejano of the Magdalo Party List against President Duterte accusing him, among others, of committing high crimes and betraying the public trust by "adopting a state policy" of inducing extra-judicial killings "of more than 8,000 persons who merely suspected of [being] drug pushers, drug users ... without benefit of trial or due process of law."

Essentially, these allegations also constitute mass murder punishable under the Rome Statute as a crime against humanity and, therefore, within the jurisdiction of the ICC. Such crimes have no prescriptive period. This means that it can be filed regardless of the length of lapsed-time since their commission.

Are the representatives – or majority of them especially those allied to President Duterte – capable of independent decision-making? Will they follow their conscience, be impartial in considering the charges and principled enough to isolate themselves from any Duterte influence? Or are matters of conscience, impartiality, independence and principle too much to expect from them? Are they, as perceived by many, simply subservient to the wishes of the President always wanting to satisfy him regardless of the issue?

If the politicians in the lower house "railroad" the impeachment proceeding/investigation by merely relying on the number of votes without any genuine effort to investigate, and decide to say "NO' to the impeachment, this will comply with the requirements for the ICC to acquire jurisdiction over the concerned public officer, in this case, the President. Do our representatives realize that the fate of President Duterte being haled to the ICC actually rest on them? Or, again, is such a "realization" too much to expect from the representatives?

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But, let us see what these politicians will qualitatively or perfunctorily do come voting-time for impeachment in the lower house. For it must also be noted that the dismissal of the impeachment-complaint does not necessarily mean absence or failure of genuine investigation.

And, in the meantime, will Speaker Pantaleon Alvarez still consider the complaint of Representative Gary Alejano an act of stupidity? Or, considering the long-term repercussion of the impeachment complaint as reaching the ICC and therefore more damaging to the President, was the Speakers' trivialization of the complaint the real act of stupidity?

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