Judge Miriam skips ICC oath-taking as Asia’s first woman judge for Corona trial

Analysis

By Raïssa Robles

Judge Miriam Defensor-Santiago skipped her scheduled oath-taking Friday  at the International Criminal Court (ICC) as Asia’s first woman judge.

The ceremony in The Hague, Netherlands would have been a fitting symbol for the world celebration of International Women’s Month this March. It would have been a triumph for herself, for her country, for Asia and for women the world over.

Instead, all that would have to wait as she recovers enough from a fluctuating blood pressure, exacerbated by the likes of lawyer Vitaliano Aguirre and Congressman Niel Tupas at the ongoing impeachment trial of Supreme Court Chief Justice Renato Corona.

“As much as possible she would want to see it (the Corona trial) through,” her media bureau chief, lawyer Jeanie Bacong, told me in a phone interview today.

However, Santiago did not use THAT as her excuse not to report for duty in The Hague.

Bacong said the excuse that MDS (Santiago’s nickname) officially gave to the ICC was her ill health.

The ICC has already given her permission to defer her oath taking, another staff member told me.

UPDATE: Supporters of Judge Miriam have put up their own on-line petition. To view, click on this link. One of those urging people to sign up is our very own commenter Mary Grace Sanchez.

Upon her oath-taking, she would have been required to resign at once from the Senate. But Bacong said, “she was advised by the President of the ICC she shouldn’t give up her (Senate) post here yet until she has been called by the ICC to report for her duty.”

Is she aware of the online petition asking for her removal as ICC judge?

I asked Bacong that question.

She replied: “I don’t think she knows it yet. She’s been busy studying the impeachment case.”Then she added, “We cannot comment on that personally.”

But she noted that her boss was elected by states parties: “You cannot dismantle their vote by online petition.”

She’s right.

Only the countries that voted for her can unseat her

Separately, I talked to an expert on international law whom I will call Noel. He laughingly told me that those at the ICC must be very perplexed to receive e-mails asking for the removal of a newly-elected judge who has not even started her tenure.

He described Miriam Santiago’s election as “a tribute to Philippine diplomacy.”

He noted that for years, a seat at the International Court of Justice (ICJ) had eluded Senator Miriam Santiago. The previous administration of President Gloria Macapagal-Arroyo had tried but failed to deliver that to her.

Noel said the administration of President Benigno Aquino III tried a different tack by getting her elected to the ICC instead of the ICJ, which was harder to do. Noel explained that ICC nominees are placed on two lists. The first list consists of specialists on criminal law and the second list of specialists on public international law.

Senator Miriam Santiago was nominated for the second list, which also happened to have “gender balance” as an additional requirement. That gave her an edge, Noel said.

Noel pointed out to me that the Rome Statue of the Criminal Court which had created the ICC spelled out a difficult process for removing judges.

Article 46 of the Rome Statute only states two grounds for removing a judge:

Article 46
Removal from office
1.A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person:

(a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided or in the Rules of Procedure and Evidence; or

(b) Is unable to exercise the functions required by this Statute.

And the process of removing a judge is as hard as electing one.

Article 46 states:

2.A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot:

( a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges;

What constitutes “serious misconduct” for a judge? 

The ICC has its own Code of Judicial Ethics that its judges have to follow.

Article 8 specifically prescribes “conduct during proceedings”. Please read below numbers 1 and 3 in particular.

Hmmm, Did the ICC Code talk about judges having to “remain patient and courteous towards all  participants and members of the public present and require them to act likewise?”

Does the following video below, taken during the 2000 impeachment trial of then President Joseph Estrada fall under the admonition of the Code for the judge to “require” the public to behave?

I asked Judge Miriam’s media bureau chief, Bacong, whether MDS had violated the two sections of Article 8 of the Code when she harangued prosecutors as “gago” and she raged against lawyer Vitaliano Aguirre for covering his ears in front of her.

For foreigners reading this, the emotional equivalent of the word “gago” is imbecile or moron.

Attorney Bacong told me to e-mail my question and she would take this up with Senator-Judge Miriam forthwith. I will do that after I post this.

I also asked Atty Bacong about Section 2 of Article 10 of the Code which states:

She told me that because of this Section – which bars ICC judges from exercising “any political funciton” – her boss would resign from the Senate the moment she is called to the ICC to hear a case.

How will Senator-judge Santiago vote on the Corona impeachment trial?

Many of my commenters have all but assumed that Senator-Judge Miriam will acquit Corona.

Bacong denied this saying:

The senator hasn’t made up her mind yet on how she’s going to vote in the impeachment trial. She was expressing her views as a lawyer and a former trial court judge. We don’t know what she will do when the defense presents their evidence. She hopes the defense does not commit the same mistakes as the prosecution. That they learned from what happened with the prosecution

Santiago still wants to vote for the RH Law

Attorney Bacong also said that Sen. Miriam had hoped to cast her vote for the approval of the Reproductive Health Law “which she had defended as a co-sponsor”.

Judge Miriam was overwhelmingly elected to the ICC

Judge Miriam was elected to the ICC last December 12 at the UN headquarters in New York by 79 out of the 104 “States Parties” – or countries that had ratified the Rome Statute. It was an “overwhelming vote.” In fact, she topped the election.

According to a press statement from the Philippine Department of Affairs then,

She was the first to be elected out of 18 candidates vying for six seats on the Court.  For the first round of voting, she bested candidates from every region.

During the four month campaign and run-up to the elections, Dr. Santiago gained the support of States Parties for her pre-eminent expertise in the international law and outstanding experience as trial court judge.

“Dr. Santiago is eminently qualified.  She has shown competence and commitment in defense of the rule of law.   She has demonstrated her intelligence and legal acumen through her decisions that have been cited by the Philippine Supreme Court.  She has shown independence and integrity in her actions. She is more than qualified for this position,” Foreign Affairs Secretary Albert del Rosario said.

What the press release didn’t say, was that the Philippine government had wined and dined the other UN states-delegates on lamb chops and wine – using our money.

The Inner City Press, an online blog that delves into UN activities, posted this interesting writeup about the Philippine campaign to get Senator Miriam elected to the ICC:

Another sample campaign has been for the Philippines’ Miriam Defensor-Santiago. On Friday, December 2 generally well liked and earnest Permanent Representative Libran N. Cabactulan of the Philippines threw a reception in the General Assembly lobby complete with wine, lamb chops and samosas.

Available at the reception were excerpts from court decisions, some by Miriam Defensor-Santiago and some citing her, for example a decision in Republic of the Philippines versus Marcos.

Inner City Press asked Miriam Defensor-Santiago if she thought the ICC should indict at least some non-African leaders, to move away from the perception that only Africans are targeted by the Court. “I don’t know,” she answered, “that remains to be answered by the major powers.”

To some, this is a troubling answer; others question some of her jokes about gender differences and secret love children. She faces a single opponent from Cyprus for the Asian group seat.

If you really want to have your voice heard on Senator-Judge Miriam

The ongoing online petition launched by Rodel Rodis has gathered 455 signatures so far.

Noel, the international law expert,  said that while the ICC would not be able to do anything about the petition, the petition would “forewarn” the body about her.

I just had a thought.

If people are really intent on having their voices heard about Judge Miriam, they can also contact Inner City Press – which has already written about the senator-judge  – via its Twitter account:

Or through any of the following ways:

Inner City Press, Inc.
United Nations office:
UN Secretariat building, 42nd Street & 1st Avenue

Room L-253
New York, NY 10017 USA
Desk tel: 212-963-1439

E-mail Attn: Matthew Lee, Senior Reporter (or appropriate staff) Matthew.Lee [at] innercitypress.com

Mobile: (718) 716-3540

General: Editorial [at] innercitypress [dot] com
Regular USPS mail: P.O. Box 580188, Mount Carmel Station, Bronx, NY 10458 USA
For Federal Express only, due to delay in other UN mail: Inner City Press, United Nations Office, Room L-253, New York, NY 10017 USA

Offhand, I think this lobbying could work both ways for the incoming ICC Judge Miriam.

She could work it to her advantage (call it reverse charm).

Or it could prove an added strain on her first-ever job on the world stage.