Backpedaling

In reiterating my appeal to President Marcos Jr. to flesh out his policy declaration of non-cooperation with the International Criminal Cooperation into a legal document, a colleague commented that my call is “nakakalalaki na.” (The rather sexist phrase roughly translates as disrespecting his manhood or masculine pride.) The context here is that I have unwittingly challenged the word of honor of PBBM despite his public avowals.  

Honestly, I have no intention of insulting PBBM, the person I supported in the 2022 presidential election and has supported until now. The issue has nothing to do with machismo. It has everything to do with preserving our national sovereignty from foreign intrusion.  

Further, it does not follow that I cannot or should not question the policy decisions of the Chief Executive, particularly when they have international and domestic legal implications. And in view of his penchant for changing tune on several national issues.

Formalizing the verbal orders of the Chief Executive through a presidential issuance would make the policy binding and enforceable. In terms of compliance, the written document will provide clear instructions to Executive and law enforcement agencies when dealing with ICC personnel. It will also hold them accountable and liable.

For instance, what does the Rome Statute say about the non-cooperation of a non-member country? “Where a State not party to this Statute, which has entered into an ad hoc arrangement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of State Parties or, where the Security Council referred the matter to the Court, the Security Council.” (Article 87, Section 5) 

The Philippines officially withdrew from the Hague Tribunal in 2019. I have consistently argued that the Court lost its authority to probe or prosecute individuals involved in the war on drugs campaign. It failed to trigger the exercise of its jurisdiction while the Philippines was still a Party to the Statute. It was only in 2021 that the Pre-Trial Chamber (PTC) approved the commencement of a preliminary investigation.

The Court cannot compel the Marcos administration to cooperate with any of its criminal proceedings, unless the latter subjects itself to ICC jurisdiction. “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.” (Article 12, Section 3)

Therefore, an executive order could stipulate that the government shall not allow the ICC to exercise its jurisdiction in the country and shall not enter into any ad hoc agreement with the Court. It also directs the entire Executive branch, specifically the Philippine National Police, National Bureau of Investigation and the Armed Forces of the Philippines, to ignore all requests from the Court for assistance in the arrest of Filipino nationals. Moreover, an illegally arrested Filipino can file a writ of habeas corpus before a domestic court and present the issuance as documentary evidence.   

Policy reversal

I keep raising the importance of a written document, given that the President has backtracked on the ICC non-engagement issue. In early 2023, I went to Malacañang and offered my legal advice to the PBBM. He and other Cabinet members agreed that the Philippines is not obligated to cooperate with the Court. The Presidential Communications Office (PCO) released a statement on Feb. 18: “PBBM maintains ICC has no jurisdiction.” In a STAR article dated April 14, Justice Secretary Boying Remulla vowed to personally force ICC investigators to take the first plane out of the country (“DOJ chief: ICC probers to be barred from Philippines”).

Nine months later, the President backpedaled. The PCO released a story: “PBBM: Rejoining with ICC is under study” Nov. 24. From a tough stance, Boying changed his tack (Remulla: ICC probers can enter PH, but must follow legal procedures, Politiko, Jan. 21, 2024). Indeed, the sudden change in the policy direction of this administration is disconcerting. The decision has become controversial, too, since former president Rodrigo Duterte and Vice President Sara Duterte have been named respondents in the drug war case. The Marcos-Romualdez and Duterte families, except PBBM and VP Sara, have been at odds of late.

Similarly, the President did a flip-flop on the issue of Charter change. At the 2023 Philippine Constitution Day celebration, Marcos declared that ‘Cha-cha’ is not a priority of his administration. He said amending the 1987 Constitution can keep abreast with the conditions needed for the country to survive local and international challenges (PBBM: Phl Constitution remains ‘dynamic, flexible,’ PCO/ Feb. 13). Without tinkering with the economic provisions of the Constitution, the Philippines achieved the second fastest growth among emerging Asian economies in the last quarter of 2023.

Speaking on the same occasion this year, PBBM expressed a different position. The Marcos administration would only introduce constitutional reforms related to the economy (PBBM vows to proactively confront constitutional issues, PCO/ Feb. 8, 2024). I do not know whether Speaker Martin Romualdez, who admitted to facilitating discussions on the contentious people’s initiative, influenced his change of heart. What I find troubling is the possibility that he is aware of alleged attempts from Lower House members to extend the terms of elected officials. I hope PBBM would put his foot down on this. If I were him, I would immediately tell my congressional allies to stop any effort to railroad and sully the people’s initiative concept through bribery, misrepresentation and deception.  

I have also observed that the President has backpedaled on Sino-Philippine bilateral ties and peace talks with the CPP-NPA-NDF. I understand his dismay over China’s use of force against Filipino fishers in the disputed West Philippine Sea. Nevertheless, the government should continue exploring diplomatic avenues to lessen the tension in the maritime zone while strengthening our economic ties with China. Meanwhile, I hope the government would stop dealing with insurgents and radical groups tagged as terrorists by the Anti-Terrorism Council and foreign jurisdictions. 

As head of State and government, I wish PBBM would be consistently decisive concerning threats to our national sovereignty and security. Thus, I appeal to him to put the policy of non-cooperation with the ICC into writing.