An unnecessary law

. . . is the topic of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

"In the world of international law, one saying that keeps popping up is how the Philippines seems to be 'more popish than the pope.' Really, we have created the very strong impression that we’d rather adhere to international law even over that of our own domestic laws (or interests) on any given subject. We’re probably the only country in this planet like that. The enactment of Republic Act 9851 or the 'Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity' supports that contention.

One thing immediately standing out upon a reading of that law is that the necessity for it, more so the urgency with which such a law was passed, is -- simply put -- not present. The Philippines, generally in its history and definitely at present, is not engaged in any international armed conflict. The Philippines, definitely under definitions that we should be espousing for the sake of national interest, is not engaged in any internal armed conflict. There is simply no historical and factual basis within which to make a proper frame of reference to draft a domestic legislation that would contain provisions that could appropriately apply the international standards that are apparently referred to in RA 9851. In short, we’re needlessly applying international standards to a domestic setting in a manner international law itself does not require.

It must be emphasized that any incidents that occur within the Philippines could validly and satisfactorily be dealt with by the application of the Constitution or current domestic penal or civil law. At most, perhaps the application of international customary human rights law or provisions of international human rights conventions that the Philippines entered into, by way of the utilization of the doctrine of incorporation, as embodied in Article II, Section 2 of the Constitution, would suffice. There is simply no need for the application of the international law on armed conflict, which is a specific branch of international law and for which the Philippines, factually and by way of wise legal policy, should consider itself in no way engaged for such branch of international law to be made applicable to it.

Indeed, there is a caveat contained in Section 2.g of RA 9851. Nevertheless, it must be pointed out that such applies merely to the 'State' (i.e., the Republic of the Philippines). It does not prohibit (and neither can it prohibit) the use of any of the legal qualifications or concepts provided within RA 9851 as evidence by other states or entities recognized by international law or entities that could seek recognition under international law for purposes of granting or achieving the grant of such recognition of rights or status that may be had under international law. At the least, the probable weakening of any government negotiating position vis-a-vis any criminal group or international entity supporting such criminal group is palpable.

Finally, note that the provisions of Sections 3-6 are too general and ambiguous to encourage an effective implementation of the same within our domestic law system. This can be seen by comparing RA 9851 to our Revised Penal Code, the latter backed up as it is by the Code Commentaries of its authors, as well as jurisprudence and analysis accumulated through the years. The reference that RA 9851 makes to international agreements (e.g., Section 3.c, which makes reference to the 1949 Geneva Conventions) is really in practical terms of no help. International agreements are almost always worded in a general manner so as to allow a huge amount of leeway in the settlement of disputes at the state-to-state level. This also allows a state to correct by itself any situation it is involved in due to reasons of respect for and deference to sovereignty. From negotiations all the way up to international litigation, the matter would necessarily involve economic, political, diplomatic, developmental, and all other considerations aside from the legal. The difference, therefore, between the construct of the provisions of international agreements and the construct of provisions of domestic legislation, as well as the difference between state-to-state litigation and that of domestic litigation, is clear.

RA 9851, furthermore, contemplates the application of penal sanctions on individuals and for which quite specific and categorical definition of the elements must be necessarily considered. Considering the vulnerability of government troops or police personnel to litigation under the ambit of RA 9851, the disadvantage that it presents to the state for it to be able to protect itself effectively is too substantial to be ignored. This is considering already that the rewards sought (i.e., giving value to 'the dignity of every human person' and guaranteeing 'full respect for human rights') can be properly achieved, as mentioned above, through the application of our Constitution, and present penal and civil law provisions.

Frankly, what we should be focusing on is the strengthening of our institutions and advancing our interests rather than work for the applause of foreigners."