The Moral Basis of Jurisdiction

 

By Menelito Mansueto 

Many protests are happening throughout the country and abroad. The people are enraged. However, mainstream media reporting is biased and just ignore such large gatherings. They only show footages featuring a small number of participants, loaded with personal opinions, and employing very selective editing. In about two months, the Philippines will hold its midterm elections. Meanwhile, Duterte's supporters are cautious, recognizing that if the protests grow and persist, they could serve as grounds for a martial law order, potentially jeopardizing the election process. 

It is also interesting to ask what could have been the source of this political feud? The Marcos clan might have thought it very awkward from the start to have somebody on their side who was not fully supportive of their vested interests and corrupt practices. The Marcos administration also made allies with rabid opponents of the past Duterte administration. The Marcos supporters and the liberals, as well as civil society groups, have found a common enemy in the person of Rodrigo Duterte. 

Maybe it would be helpful to reflect on this matter. Do you think Bongbong Marcos is still willing to come down from his position come 2028? It is no surprise that left-wing civil society groups are now on the side of the Marcos administration. Is it because they think that Bongbong Marcos is harmless to compared to Marcos Sr? They have suddenly forgotten their martial law hangover and ‘unfinished business’ a sentiment which was rampant during the past administrations. 

For purposes of imagination, let us assume that Duterte gets a guilty verdict in the international tribunal. So, the ICC will consider it a great victory, for it will boost their credibility having tried a big fish who was a former president of a sovereign country. However, back in the Philippines, we are all well aware that Duterte’s prosecution has caused pain and has elicited sympathy from the Filipino masses, which could lead to a better outcome come election time. 

If that happens, it can give a favorable chance for Sara Duterte to get an acquittal, run and win the presidential elections in 2028. The question to ask would be this: What would the ICC feel if the person that they would convict has huge popular support and love back home? The ICC is nothing more than a clown for being an intruder in the affairs of a sovereign nation as if they are acting in favor of the political interests of the Marcoses! What moral credibility will the ICC have with this alliance? 

Millions of Filipinos who are in full support of the former president will be enraged by the ICC and its judges, which despite the lack of jurisdiction, might choose to convict the former president. Concerning the lack of jurisdiction of the ICC, that itself alone is already morally questionable, especially considering that the nature of the rendition of the former president into a foreign court without any consideration of our judicial system. The ICC will be reduced into a laughing stock of the whole world. 

Another possible scenario is that Duterte will be able to return to his homeland, no matter how slim the chances are. The Philippines has been a non-member country of the ICC since it withdrew in 2019. The ICC may have continuing jurisdiction after its effective withdrawal in 2019 from the ICC only if the ICC Office of The Prosecutor’s (OTP) had a request for authority to investigate and the ICC Pre-Trial Chamber (PTC) granted such authority. These two preconditions must both happen before the withdrawal becomes effective within two years of allowable time. 

However, take note that Duterte was still the President of the Philippines until May 2022, and was only been brought to The Hague this year on March 12, 2025. Hence, the preconditions must not have been securely met and will substantially result in the loss of ICC jurisdiction. The withdrawal and the non-accomplishment of the preconditions will have a retroactive effect resulting in the erasure of all ICC crimes committed by any of the citizens of the withdrawing country. 

The above interpretation had already been articulated by two dissenting judges in the ICC Appeals Chamber as based on Article 127 of the current Rome Statute. The country's withdrawal from the ICC became effective in 2019, but it was only in 2021 that the ICC OTP requested authority and the ICC PTC gave its go signal for an investigation. The precondition did not occur within the two-year allowable time of 2019-2020. Thus, applying the logic of this interpretation, the ICC had already lost jurisdiction in 2021. The concern here is a matter of procedural justice. 

Procedural justice has something to do with fairness and transparency. If those who advocate for the prosecution of President Duterte are to be worth their salt, they should subject themselves to the same concern for procedural justice. Otherwise, there is a double standard. They did not give PRRD a chance to get a remedy in his own country, which violates his basic rights as a Filipino citizen. He was completely denied of everything. according to his lawyer, Nicolas Kaufman. The trial, hence, has no firm moral basis. 

- Menelito Mansueto is a Professor at MSU-IIT in Iligan City