SOME PROBLEMS AND APPROACHES IN THE RELATION OF NATIONAL LAW AND THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: Application of International Humanitarian Law

Speech delivered at the ICC symposium, held at the DFA Auditorium on 26 August 2011

At some other time, we should create the prospect of undertaking a closer analysis and a more comprehensive review of how the Rome Statute impacts on Philippine law, in particular its constitutional framework.

Today, we are left with the limited opportunity to deal with selected problems and approaches in general overview, which may suggest to us the complexity of the problems in the larger frame, in the relation of the domestic law with the new mechanisms of the international criminal law under the Rome Statute.

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Interview transcript – 22 August 2011

How would you assess first day of debates on the RH Bill?

It is exactly what we expected. We expected a challenge to exchange opinions but we already have decided, Sen. Pia Cayetano and I as sponsor and co-sponsor, that if it is simply what I call an ‘opinion question’ we’re not going to dispute it because one person is entitled to his own opinion. And since we are already here with preconceived positions on the RH bill, whether pro- or anti-, there’s no point that hoping we could convert the other person. So we developed a strategy that we would just allow any oppositor to air as much of his beliefs or suppositions for as long as it takes, and then we’ll simply say   “We appreciate the opinion but I have already taken my position.” So we are not going to dispute any opinion questions.

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The Reproductive Health Act (Sponsorship speech parts 2 and 3 )

(Click here for Part 1 of the sponsorship speech)

 PART 2 :   Constitutional and International Law

 No Prohibition in the Constitution

             There are a number of constitutional provisions that underlie the RH bill.  But the most salient is what I would call the “Sanctity of Life” Clause found under Article 2, as a declaration of state policy:

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.  It shall equally protect the life of the mother and the life of the unborn from conception.

This provision does not mention the term “reproductive health” or any of its affiliate vocabularies.  This is in the nature of a constitution.  As explained in the 1930 case ofLopez v. de los Reyes,[1] speaking of the Constitution:

It is an instrument of a permanent nature, intended not merely to meet existing conditions, but to govern the future.  It does not deal in details but enunciates the general principles and general directions which are intended to apply to all new facts which may come into being, and which may be brought within those general principles or directions.

The Constitution should not be read like a newspaper story, on the basis of which each reader can feel free to express his own interpretation.  Instead, to discover the intent and meaning of the Constitution, we have to turn to a process called “constitutional construction.”

In the 1938 case of Gold Creek Mining Corp. v. Rodriguez,[2] the Supreme Court ruled that fundamental principle of constitutional construction is to give effect to the intent not only of the framers, but also of the people who adopted it.  It is not sufficient to quote the opinion expressed in the records by one delegate to the constitutional convention; that would be only one person’s opinion.  Neither would it be sufficient to claim that a certain interpretation was the intent of the people who approved the Constitution in a plebiscite.

Hence, we are left with the conclusion that the Constitution is what the Supreme Court says it is.  In other words, no legislator can authoritatively construe the meaning of the Sanctity of Life Clause, and it would be pointless to debate its meaning here in the legislature.  We can save a lot of time in Congress by waiting for the proper branch of government to tell us what this Clause means – the Supreme Court.

To maintain peace and order, the sovereign people agreed to lend some of their sovereignty to the government, under terms which are defined in the Constitution.  If there is no applicable provision in the Constitution, the implication is that the power has been reserved to the people in their sovereign capacity.  Thus if there is no prohibition in the Constitution, then it is deduced that the people’s representatives in the Congress are free to legislate on the matter.  In other words, the Constitution serves merely as a limit to the police power of the State.

Accordingly, the Supreme Court ruled in the 1924 case of People v. Pomar:[3] “The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, and so long as it does not contravene any positive inhibition of the organic law . . . .” (Emphasis added.)

The Constitution, directly or indirectly, does not prohibit the RH bill.  Therefore, in constitutional terms, this Senate is free to enact this bill.  It is now well accepted in our jurisdiction that under the “rational basis” test, so long as an act of Congress bears some reasonable relationship to the grant of power to the national government and it is not otherwise prohibited by the Constitution, a reviewing court must find the law to be necessary and proper.

If the Senate passes the RH bill, our action would amount to a legislative construction of the Constitution.  The rule is that a practical construction by Congress of a provision of the Constitution is entitled to great weight and should not be lightly disregarded.  Hence, if we pass the RH bill, it will enjoy a presumption of constitutionality if it is questioned in the Supreme Court.

It has been said that even if we abolish the entire Bill of Rights, all the rights enumerated would still exist, provided that we keep the Equal Protection Clause and the Due Process Clause.  These two great clauses are found in our Bill of Rights, which provides: “Sec. 1.  No person shall be deprived of life, liberty, or property, without due process of law, nor shall any person be denied the equal protection of the laws.”  The right of the mother to protect herself and her baby from death-dealing poverty is a liberty protected under the Due Process Clause.  Similarly, the right of the mother in the lowest social class is equal to the right of the mother in the highest social class, when both rights pertain to freedom of information.  Thus, to make information on reproductive health accessible to the rich but not to the poor would be a violation of the Equal Protection Clause. 

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THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Sponsorship speech as Chair of the Subcommittee on the Rome Statute of the International Criminal Court, 16 August 2011

 Mr. President, distinguished colleagues:

             On behalf of the Committee on Foreign Relations, I have the honor to seek Senate concurrence with the ratification of the Rome Statute of the International Criminal Court, by means of Senate Resolution No. 546, under Committee Report No. 52.

Rationale

            The Rome Statute of the International Criminal Court is arguably the most important institutional innovation since the founding of the United Nations.  This complex and detailed international treaty provides for the creation of an international criminal court. Under Article 1: “It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern . . . and shall be complementary to national criminal jurisdiction.” (Emphasis added.)

The Rome Statute is a benchmark in the progressive development of international human rights.

Historical Background

Philosophy and religion have given rise to some fundamental values of the human spirit.  Among these values is the idea that there must be a common denominator of behavior, “even in the most extreme circumstances of brutal armed conflict.”

Hence, national courts have prosecuted war crimes.  But prosecution is ineffective, when the suspects are still in power, and exercise power over their victims.  Hence, the prosecution of war crimes is generally limited to the defeated forces and not to the winning forces, except sometimes to rogue combatants.  In this case, national justice systems are unable to be impartial.

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MIRIAM TO MIGZ: RETURN TO WORK

Sen. Miriam Defensor Santiago said that until the Senate accepts his resignation, Sen. Juan Miguel Zubiri should continue reporting for work.

“The Penal Code prohibits the crime of abandonment of office. It is committed by any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service,” she said.

Santiago emphasized that the test for a valid continuation in office is that there should be no detriment to the public service.

The senator said that if Zubiri stops reporting to the Senate, he runs the risk of facing a penalty of one to six months’ imprisonment.

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