‘Sovereignty resides in the people’

By Herbert Vego

DID President Ferdinand “Bongbong” Marcos Jr. really mean what he said on Friday? That his government would not cooperate with the International Criminal Court’s (ICC) investigation into the thousands of killings blamed on his predecessor’s “war on drugs”?

Most likely he is just afraid of losing his “unholy alliance” with his predecessor, Rodrigo Duterte.

On the positive side, a break-up of that alliance could spark an opportunity for him to redeem the “dictator” image of his father, Ferdinand Sr., whose 20-year reign spanned from 1966 to 1986. Based on the documentation of Amnesty International, Task Force Detainees of the Philippines, and similar human rights entities, the Marcos dictatorship left behind 3,257 known extrajudicial killings, 35,000 documented tortures, 77 disappearances, and 70,000 incarcerations.

We had hoped though that he would not be so protective of the previous regime; that he had not forgotten what happened on August 23, 2011when the   Senate – of which he was a member — ratified the Philippine membership to the ICC, the world’s tribunal for brutal crimes against humanity.

The “junior” seems to be confirming the “weak leader” image that Duterte had tagged him in a meeting with PDP-Laban politicians in Calapan City, Oriental Mindoro on November 18 2021. He was averse to the possibility of his daughter Sara teaming up with Marcos for the 2022 presidential-vice presidential race.

I recall that Duterte’s party initially thought of fielding Senator Christopher “Bong” Go for president and Sara Duterte for “vice”, but this did not sit well with the latter. She would rather be running mate than opponent of Marcos, who could not be dissuaded from seeking the top post. Thus, the “uniteam” emerged in the nick of time.

Obviously, there were pre-conditions to that alliance.  Rumor has it that one of them was for Sara to run for President with Bongbong’s support in 2028.  But we see no signs leading to that yet.

Like Justice Secretary Jesus Crispin “Boying” Remulla and Solicitor General Menardo Guevarra, Marcos cites Philippine “sovereignty” and “lack of ICC jurisdiction” as bases for his non-cooperation.

“So,” Marcos told the media during the inauguration of road projects in Zamboanga Sibugay,
“we continue to defend the sovereignty of the Philippines and continue to question the jurisdiction of the ICC in their investigations here in the Philippines.”

That’s misleading in the context of Article II, Section 1 of the Philippine Constitution, which states, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

Isn’t that clear enough? Sovereignty resides in the people, not in the politicians whom the ICC wants to investigate due to failure of the government to render due process, especially to the victims of extrajudicial killings.

Why should the present government defend the accused rather than the sovereign people, among whom are the widows and relatives of men killed during the “Oplan Tokhang” implemented by then Philippine National Police (PNP) chief Ronald “Bato” dela Rosa. The PNP admits having killed around 6,000 “nanlaban” victims, but the human rights groups say the number is not less than 30,000.

The controversial withdrawal of the Philippines from the ICC on March 17, 2018 (as a rule effective one year later) was certainly an attempt to evade the ICC, which had been receiving complaints against extra-judicial killings.  There could not be any other reason.

Withdrawal from the ICC, however, would not legally prevent it from investigating pre-withdrawal crimes. This is very clear in Article 127, Section 2 of the Rome Statute establishing the ICC, to wit: “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from the Statute while it was a party to the statute.”

Let us go back to the date August 23, 2011 when the Philippine Senate approved Resolution No. 546 in accordance with the wish of the late President Benigno “Noynoy” Aquino III. Only the then Senator Juan Ponce Enrile voted “no”.

The late Senator Miriam Defensor Santiago, sponsor of the resolution, argued that, henceforth, any past leader could be investigated and prosecuted if he commits a core crime, particularly if he is the head of state, member of the national legislature, or government official at a similarly high level.

“If the state is already investigating or prosecuting its own head of state or similar official,” Santiago said, “the Court [ICC] will not intervene. But if the state is unwilling or unable to prosecute, then the Court will try the case in The Hague. By concurring in the ratification of the Rome Statute, the Philippines will help the Court to end the culture of impunity, and affirm our position as a leading human rights advocate in Asia.”

She based her argument on Article 17 of the Rome Statute, which says that the ICC may intervene if “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

Sen. Loren Legarda, Chairperson of the Foreign Relations Committee in that year (2011), lauded the ratification in a speech: “This will strengthen our stand in protecting human rights, including the right to human life and dignity, and will bring a strong message that we will never tolerate impunity.”

Does Loren, a senator once again, still maintain that stand? Just asking.

Therefore, whether Pres. Marcos likes it or not, the ICC will also investigate crimes committed by the so-called Davao Death Squad during Digong Duterte’s time as mayor of Davao City, where extrajudicial killings took place from November 2011 to June 2016.

If Digong or Bato could be prosecuted and tried in a local court, then probably the ICC would pull out.