Why are we so restive?

Why is there so much social upheaval in our country today? I dare to opine that this increasingly intense and frequently violent disruption of our established social order, norms, and power structures is related to the case which is officially known as The Prosecutor v. Rodrigo Roa Duterte, Case No. ICC-01/21-01/25, for crimes against humanity of murder, torture, and rape. But, why, in the first place, has this case disturbed so much our country?

Let me begin with an attempt to understand the treaty making power of the president of our republic as found in the constitution. A treaty, by the way, is a formal, legally binding written agreement between sovereign states or international organizations, governed by international law. In Section 21. Article VII of the constitution, it is written that “No treaty xx shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” The 1987 Constitution requires Senate concurrence in treaties. Absent such concurrence, the signed document remains invalid and ineffective. Further, the qualified number, two thirds, (normally 16 senators) indicates the grave importance of the assent of a glaringly superior number of senators. A simple majority of the body (13 votes) is not enough.

Here is what Fr Joaquin Bernas, an eminent constitutionalist, wrote about treaty. “Treaty making involves two distinct phases. In the negotiation phase, the power of the president excludes the legislature. xx He alone negotiates. xx The Senate cannot intrude and Congress itself is powerless to invade it.” However, (and I believe this is more important) the fruit of the Executive’s negotiation cannot bind as law unless it has the concurrence of the Senate.

Let us proceed to this treaty which is mostly referred to as the Rome Statute. On December 28, 2000, Charge d' Affaires Enrique A. Manalo, signed the Rome Statute on behalf of the Philippines at the United Nations Headquarters in New York. It was the late Senator Miriam Defensor Santiago, however, who authored and sponsored the Senate resolution that concurred in the ratification of the Rome Statute on August 30, 2011, after about 11 years passed. This was done during the administration of President Benigno Simeon “Noynoy” Aquino III. Because of such ratification the treaty became “valid and effective” and entered into force on November 1, 2011. Theoretically speaking, it was not the signature of Charge d' Affaires Manalo, but the senate resolution concurring the treaty that the Philippines became bound to obeying the Rome Statute.

Rodrigo Roa Duterte, began his six-year term as our president on the noon of June 30. 2016. But in April 2017, there was a Filipino lawyer named Jude Sabio who filed a case with the International Criminal Court (ICC) against Duterte, alleging crimes against humanity related to the "war on drugs." Senator Antonio Trillanes IV and Partylist Representative Gary Alejano, filed in June 2017, a supplemental complaint with additional documentation, supportive of Sabio’s case.

Duterte declared that the ICC engaged in "baseless, unprecedented and outrageous attacks" on his person and administration, then he officially withdrew the Philippines from the Rome Statute, with the notice filed on March 17, 2018, (please take note of the date)! and taking effect on March 17, 2019.

The next historic scene came with the filing of a petition before the Supreme Court on May 16, 2018. Also take note of the date. This case was the Pangilinan v. Cayetano (G.R. No. 238875), which was filed by several senators namely Pangilinan, Drilon, Bam Aquino, De Lima, Hontiveros, and Trillanes. The petition challenged the Philippines' unilateral withdrawal from the Rome Statute. To them, such withdrawal from the ICC was unconstitutional without Senate concurrence.

The Supreme Court, on March 16, 2021, (the date, please) ruled the case moot, because the Philippines had already completed the withdrawal process from the Rome Statute in 2019. Here are two things that bother me. First, the decision reinforced that the method of withdrawing from an international agreement should require Senate concurrence but accordingly the Court noted that the Senate never officially acted to contest the withdrawal. Oh my goodness, as if the Pangilinan petition was not existing. Second, it upheld the withdrawal as part of the president’s foreign policy power even if it held that the President cannot unilaterally withdraw from treaties that require Senate concurrence for accession. What a linguistic play of words!

To me, the court’s upholding Duterte’s withdrawal of the Philippines from the Rome Statute is the trigger of the social upheaval we are experiencing. I believe that had our honorable highest tribunal decided that Duterte’s withdrawing the Philippines from the Rome Statute was unconstitutional, nobody would have started these intense and violent demonstrations and rallies. No one would have questioned the arrest of Duterte and his trial in The Hague and certainly no scuffle for the arrest of Sen de la Rosa would have taken place.