The intransigent insistence of special prosecutor Karim Ahmad Khan of the International Criminal Court to pursue its investigation against perceived offenders of alleged crimes against humanity not only is eternally vexing but is a continuing assault against the sovereignty and territorial integrity of our country.
Despite our repeated assertion of the ICC’s lack of jurisdiction, it persists in forcing itself to acquire jurisdiction over the Philippines. It totally ignores the fundamental issues our government has raised against its obsession to investigate alleged state-sponsored killings initiated allegedly by former President Rodrigo Roa Duterte.
What are the grounds that our government officially invoked to thwart the indefensible posturing of the International Criminal Court? They are:
1. Lack of jurisdiction due to the absence of publication of the Rome Statute, the law which created the International Criminal Court, in the Official Gazette. This theory was advanced by former President Duterte.
The aforesaid legal theory finds support in common sense and legal jurisprudence. Such non-publication is fatal. Pursuant to the due process clause of the Constitution, the New Civil Code has provided that a bill passed by Congress signed into law by the President can not have a binding force and effect, unless published in the Official Gazette, to wit:
“Art. 2. Laws shall take effect after 15 days following the completion of their publication in the Official Gazette unless it is otherwise provided.” (New Civil Code)
Stated otherwise, it is ineffective. It is a dead law. In the case of Tañada vs Tuvera, G.R. L-63915 24 April 1985, the Supreme Court, in explaining the rationale of the aforenoted provision, stated in unequivocal and unmistakable language:
“The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim “ignorantia non legis excusat.” It would be the height of injustice to punish or to burden a citizen for the transgression of a law which he has no notice whatsoever, not even a constructive one.”
2. Assuming arguendo that even without such publication, the Rome Statute is effective, still the International Criminal Court has not — and can not — acquire jurisdiction by reason of the principle of complementarity. Under this principle, if a member state has the capacity to prosecute the offender/s of the jurisdictional crimes, and the will to pursue it, then the ICC can not assume jurisdiction over the member country.
It is beyond doubt that the Philippines has a robust legal system and operational. Thousands of criminal cases are pending and are continuously being heard by the courts of justice regardless of the social and political status of those charged.
Two former presidents had been charged with serious offenses, i.e. former President Joseph Estrada, and former President Gloria Macapagal -Arroyo. The former was convicted but given a presidential pardon while the latter was acquitted. What better and eloquent proof is there to show that our judicial processes are working even against the high and mighty and the powerful?
3. Assuming further that the ICC had acquired jurisdiction over the Philippines, the same has been withdrawn by its formal withdrawal thereto, which became effective one year after our country filed its formal notice of withdrawal.
On all fours, the ICC never acquired jurisdiction over us, and no amount of legal mumbo jumbo on its part can it assume jurisdiction. Its bullying must stop. The Philippine government must continuously and consistently assert its principled stand against ICC’s incursion in our domestic affairs.
We should no longer entertain any communication from them nor respond to any. Previous ones were misconstrued as the country being beholden to it — or afraid of it.
Let the ICC do its worse, we will respond in kind, as an independent and sovereign nation.