Palace on Duterte at ICC: A fair trial

MANILA, Philippines — As supporters of former president Rodrigo Duterte continue to raise issues against his arrest, Malacañang said his first appearance before the International Criminal Court (ICC) last Friday left no doubt that he was accorded due process.

“This is what we call fair trial,” Presidential Communications Undersecretary Claire Castro said of the tribunal’s treatment of Duterte, who was examined by a doctor and declared “fully mentally aware and fit” to face the court for the first time.

“Witnessing the first appearance attended by former president Duterte before the ICC, everybody could see how justice starts to roll down,” the Palace press officer said.

The court, Castro said, also confirmed that Duterte was informed of his rights, as provided for under Articles 66 and 67 of the Rome Statute, and that he was aware of the issuance of a warrant for his arrest written in the English language.

“Therefore, it reveals further that former president Duterte was indeed afforded his fundamental rights as a suspect of crimes against humanity, specifically murder, contrary to Duterte’s camp statements,” Castro said in a text message yesterday.

Article 66 of the statute, which established the ICC, states that everyone shall be presumed innocent until proven guilty before the court in accordance with the applicable law.

Article 67, meanwhile, enumerates the rights of the accused, including the right to a fair hearing, to be informed promptly and in detail of the nature of the charge, to have adequate time and facilities to prepare for his defense and to be tried without undue delay.

Castro said the ICC did not accept the request for postponement of the former president’s first appearance since there was no need for it and that it was not yet the time for him to present his defense and evidence.

In a Facebook post, Chief Presidential Legal Counsel Juan Ponce Enrile said the question to be asked is whether those killed in Duterte’s drug war were accorded due process.

In the country’s system of social order, Enrile said even criminals are entitled to “due process.”

He said the Bill of Rights states that 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 law.”

He added that the Bill of Rights also provides that no person shall be held to answer for a criminal offense without due process, and that in all criminal prosecutions, “the accused shall be presumed innocent until the contrary is proved.”

Duterte, whose drug war claimed the lives of more than 6,000 people based on official data, was arrested upon his arrival from Hong Kong last Tuesday.

President Marcos said the arrest was in compliance with the Philippines’ commitment to the International Criminal Police Organization (Interpol), which had assisted the government in tracking down fugitives.

First step

For one of the lawyers representing the victims of the war on drugs, Duterte’s first appearance before the ICC was an important “first step to attaining justice.”

Gilbert Andres, executive director of Center for International Law and one of the five Filipino lawyers accredited by the ICC, welcomed the decision of the Pre-Trial Chamber I to deny the request of Duterte’s camp for a postponement of the hearing.

“We’re quite relieved. In fact, it is a practice in international criminal justice that there will be no postponement because this is just an initial appearance. There are really no substantive matters,” he told reporters at The Hague.

He said they expect the proceedings to proceed “smoothly” and “efficiently.”

“Remember that there is only one crime that is charged here – crimes against humanity for murder. We actually expect that it will be done in a very efficient manner,” he added.

Andres also refuted the position of Duterte’s lawyers that his arrest and subsequent turnover to the ICC were a case of “kidnapping.”

“We strongly refute that because in fact, there are legal and factual bases. Number one, there’s basis under Philippine domestic law and that is Republic Act 9851,” he said, referring to the Crimes Against International Humanitarian Act.

“It provides in Section 17 that in the interest of justice, Philippine authorities may voluntarily surrender someone who is actually being investigated or prosecuted before an international tribunal,” he added.

He also noted the existence of an arrest warrant from the ICC, which he said is a “strong legal and factual basis for the arrest and the surrender of Mr. Duterte to ICC custody.”

In Quezon City, some relatives of drug war victims gathered Friday night to watch Duterte’s first appearance before the international tribunal.

The National Union of People’s Lawyers (NUPL), which also represents the victims, said Duterte’s arrest and surrender were part of due process that was never accorded to the victims.

“(There are) incredible illustration of processes how persons suspected of crimes are to be arrested and taken into custody by authorities,” the group said.

They noted that Duterte, who can apply for interim release, should not be entitled “to special treatment … (as) the potential risks of interfering or subverting the processes of the court is great.”

“Victims believe he is a flight risk – he is running for mayor of Davao City – and a threat to the safety of witnesses and evidence, and will present these comments on any such petition in a timely and proper manner,” the NUPL added.

Rejoining ICC

For Human Rights Watch, the arrest of Duterte should make the Marcos administration consider initiating steps to have the country rejoin the ICC.

“If the Marcos administration were to remain consistent in recognizing the value of the ICC and how it has improved the human rights situation in the Philippines, then the administration has no choice but make the country return to the ICC,” Carlos Conde, senior researcher for HRW, said in Filipino over dwPM.

When he was president, Duterte in 2018 withdrew the country from Rome Statute which established the ICC after the latter started investigating abuses in the conduct of his war on drugs.

Conde said that if the Marcos administration would not let the country rejoin the ICC, supporters of Duterte would have an excuse to insist that his arrest was a political move.

For former senate president Franklin Drilon, Duterte’s being made to face the ICC for crimes against humanity was an “indictment” of the country’s justice system.

“That is why the victims went to the ICC, because they did not find a fair justice system here. Rule of law starts with the investigation of the police. The first pillar of the justice system is law enforcement, and it is weak in so far as this issue is concerned,” Drilon said over radio dwIZ.

He also scoffed at the claim of Sen. Ronald dela Rosa that President Marcos “betrayed” them when the Chief Executive reportedly reneged on his promise not to cooperate with the ICC in enforcing a warrant of arrest on Duterte.

“Betrayal is not a defense in law. The determination as to whether a warrant can be served or not is determined by our laws,” Drilon said.

On Dela Rosa’s plea for the Senate leadership not to let him get arrested by the ICC, Drilon said Senate President Francis Escudero may be powerless in stopping Dela Rosa’s possible arrest if it would be implemented by the Philippine government.

Drilon said Congress can only grant its member refuge when it is in session. The Senate resumes session in June.

“While it is within Senate President Escudero’s discretion, he will be powerless over this if the Executive department will allow the warrant to be served. This is the President’s job, not the Senate’s job,” Drilon said.

Moreover, a member of Congress may only be entitled to protection from arrest if he or she is facing offense that is punishable by less than six years imprisonment. Crime against humanity is punishable by life imprisonment or prison terms of not less than 30 years.

Former senator Antonio Trillanes IV, meanwhile, said the Marcos administration should now take steps to win the “battle of narratives” against Duterte’s supporters.

“The Marcos administration needs to remind the public about what really happened – that Filipinos killed fellow Filipinos,” Trillanes said over dwIZ.

He said Duterte’s killing spree was not about restoring peace and order.

“Malacañang has to do better in explaining to the public that due process was followed. But by and large, the people have seen that Duterte underwent the correct process, such as the reading of Miranda Rights and the service of the arrest warrant,” Trillanes said.

“Let us not be duped anymore into going back to that climate of dread from 2016 to 2022,” he said. Trillanes was one of the leading figures who brought up before the ICC the issue of drug war killings during the Duterte administration. — Janvic Mateo, Marc Jayson Cayabyab, Emmanuel Tupas