Moot but not academic

By Dean Jose Mari BFU Tirol

As we recall and strive to never forget the declaration of Martial Law 49 years ago and its aftermath, let us also turn our attention to certain unfolding events which, even at this early stage, are already being subjected to historical revisionism.

I refer to the President’s March 15, 2018 decision to withdraw our country from the Rome Statute which established the International Criminal Court (ICC), which was the subject of three petitions, Pangilinan et al. v. Cayetano et al., etc., in the Supreme Court.

It is of public knowledge (1) that the Supreme Court En Banc recently and unanimously dismissed the petitions on the ground that they are moot because “the Philippines completed the requisite acts of withdrawal”, and “[t]his Court cannot compel or annul actions where the relevant incidents are moot”; (2) that earlier this month, the International Criminal Court authorized the opening of a full inquiry into the so-called “war on drugs” which appeared to be a “widespread and systematic attack against the civilian population” and constitutes the crime of humanity of murder; and (3) that the President has consistently underscored that neither he nor the government will cooperate in the investigation.

Parenthetically, less than a week ago the President’s spokesman Harry Roque recently admitted that “the Davao Death Squad does exist” but claimed that there is no evidence linking the President to it. Which leads one has to ask what he, when he was Mayor of Davao City and what his daughter and son, who are the current Mayor and Vice-Mayor, did or are doing to address and suppress it.

Now there is chatter that since the Supreme Court dismissed Pangilinan et al. on the ground of mootness, then its discussion in its Decision concerning the applicability of the Rome Statute are non-binding obiter dicta or expressions of opinion “uttered by the way, not upon the point or question pending, as if turning aside from the main topic of the ease to collateral subjects” (People v. Macadaeg).

But while a moot and academic case is “one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value” (David v. Macapagal-Arroyo), jurisprudence also provides that “[c]ourts will not render judgment on a moot and academic case unless any of the following circumstances exists: ‘(1) [g]rave constitutional violations; (2) [e]xceptional character of the case; (3) [p]aramount public interest; (4) [t]he case presents an opportunity to guide the bench, the bar, and the public; or (5) [t]he case is capable of repetition yet evading review’” (Landbank v. Fastech Synergy Philippines Inc.).

Considering the foregoing exceptions which fully apply to the facts in Pangilinan et al., it is submitted that there is no obiter therein. The Supreme Court’s dismissal of the petitions does not preclude it from resolving exceptional matters of public interest that are by no means collateral in nature: international law, Philippine foreign policy, and the ICC in general; the ICC vis-à-vis the Philippines in particular.

Moreover, the Supreme Court declared only one matter moot in Pangilinan et al.: in upholding the country’s withdrawal from the Rome Statute, it basically recognized the President’s exercise of his prerogatives as chief architect of our nation’s foreign policy to withdraw therefrom “even prior to the filing of these Petitions”.

But before arriving at this conclusion, the Supreme Court underscored that the Philippines validly entered the Rome Statute and that the same became part of the law of the land. It emphasized that the Philippines scrupulously complied with all the requisite acts for accession to the Rome Statute, in the same way that the President punctiliously complied with all the requisite acts of withdrawal.

And by invoking the Rome Statute itself for purposes of withdrawal, the President in effect acknowledged that the Philippines had validly acceded thereto. Notwithstanding his legally erroneous claim that we never became a state party to the Rome Statute as it was not published in the Official Gazette.

The Supreme Court recognized that the Rome Statute entered into force in the Philippines on November 1, 2011 and was in effect until March 17, 2019. So it was inevitable for the Supreme Court to highlight a crucial fact, which is by no means obiter dicta: a state party that withdraws from the Rome Statute is not discharged from its obligations as a member. “Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court… Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here…”

Since the Philippines validly entered into the Rome Statute, it remains a source of rights and governmental obligations for acts committed during the covered period. These rights and obligations – and the lives that have been lost because of the “war on drugs” – are not rendered moot by the President’s self-serving decision to withdraw from the Rome Statute.

In the same way that the established truths about Marcos, his presidency from 1965-1986, and Martial Law, are not rendered moot by the passage of time or by the counterfactual arguments of his family and supporters.