Who’s to blame for the ‘failure of justice’ system?

Retired Supreme Court (SC) senior associate justice Antonio Carpio had an interesting introspection about our country’s criminal justice system. This was in relation to the Philippine government’s “cooperation” with the International Criminal Police Organization (Interpol) in the “surrender” to them of former president Rodrigo Duterte. Carpio shared it in a personal message sent to me last March 17, a few days after ex-president Duterte was flown to The Hague, Netherlands last March 11.

It is a fitting rejoinder to my piece last Monday when I declared in my opening spiel that our government had virtually entrusted the Philippine justice system to fly Mr. Duterte to be tried at The Hague-based International Criminal Court (ICC). The Interpol’s “diffusion request” brought Mr. Duterte to face the ICC complaints of alleged “crimes against humanity” filed there against him.

As the law enforcement arm of the ICC, the Interpol coursed the “diffusion request” through the Philippine Transnational Crime Center (PTCC). An inter-agency body under the Office of the President, the PTCC remains an active member of the Interpol even if the Philippines has effectively withdrawn since March 2019 from the Rome Statute that created the ICC.

Thus, the “surrender” of Mr. Duterte enabled the ICC to take custody and jurisdiction on his person. He was named in 43 complaints of alleged extrajudicial killings (EJKs) during his deadly all-out war against illegal drugs while he was president and as former Davao City mayor.

ICC presiding judge Iulia Motoc set on Sept. 23 this year the next stage of the process: a hearing to confirm the charges against ex-president Duterte. In that stage of the ICC hearing, a suspect can challenge the prosecutor’s evidence. Only after that will the ICC decide whether to press ahead with a trial.

Past cases that went through at the ICC reportedly took at least two years up to eight years at the most. Turning 80 years old this Friday, Mr. Duterte will celebrate his birthday while staying at the medical center inside the ICC Detention Center in Scheveningen.

Department of Justice (DOJ) Secretary Jesus Crispin Remulla declared the same justifications as guest in our Kapihan sa Manila Bay news forum last week. Remulla clarified the original EJK cases filed at the DOJ have already been turned over to the Office of the Ombudsman. These EJK cases dating back seven to eight years remain pending at the Office of the Ombudsman, not the DOJ, Remulla pointed out.

Remulla explained many of these alleged EJK cases do not have any police record or police reports nor are they found in police blotters. Because the alleged crimes were committed purportedly by erring members of the Philippine National Police (PNP), it made the DOJ job more difficult to prosecute them.

Remulla admitted though the DOJ is still looking into other alleged EJK cases during the Duterte presidency and those in Davao City. He disclosed the DOJ panel of prosecutors is at the stage of “case build-up” using the official copies of the quad committee documents gathered during the public hearings on alleged EJK cases. As of last week, Remulla disclosed the case build-up is still with the National Bureau of Investigation (NBI), an attached agency of the DOJ.

Of the five pillars of our country’s criminal justice system – namely, law enforcement, prosecution, the courts, corrections and community – Remulla pointed to law enforcement as the weakest link. At least that was the situation that prevailed during the six years of the Duterte presidency, Remulla told the Senate committee on foreign relations that looked into the questioned Interpol arrest of the former president.

This left the impression that it is the Philippine justice system, not Mr. Duterte, that is now facing the ICC trial. In the form of question-and-answer, the retired High Court magistrate tried to pin down: “Who is to blame for the ‘failure of justice’ in the thousands of EJKs during the presidency of Duterte?”

Dissecting each, Carpio asked: “What are the elements of our justice system?

1. Criminal investigation. This is conducted by the PNP and NBI, all under the control of the President.

2. Preliminary investigation. This is conducted by the DOJ, which is under the control of the President.

3. Preparation and filing of the criminal information in court. This is the task of the DOJ, which is under the control of the President.

4. Prosecution of the criminal case by the DOJ, which is under the control of the President.

5. Promulgation of judgment on the criminal case. This is the task of the judiciary, which is not controlled by the President.

“Who is to blame that until now no criminal information for the thousands of EJKs has been filed in court against Duterte?

“While Duterte was president, no criminal case could be filed against him for two reasons. First, Duterte will naturally never allow himself to be investigated or criminally prosecuted by the agencies under his control and second, under existing jurisprudence, the president cannot be criminally sued while in office.

“That is why while Duterte was president, the Philippine government was unable and unwilling to investigate or sue Duterte for the thousands of EJKs during his presidency.

“The failure to investigate or sue Duterte for the EJKs was not the fault of the judiciary because the investigation, filing and prosecution of cases are the functions of the Executive branch headed by the president. A court cannot decide a case if no case is filed before it. Until today no criminal information has been filed in court against Duterte.

“That is why in 2021 the ICC correctly held that the Philippine government was unable and unwilling to investigate and prosecute Duterte for the thousands of EJKs in his war on drugs. Thus, the ICC had jurisdiction to investigate the EJKs in the Philippines during Duterte’s presidency.”

Incidentally, Carpio has differed in the past with Duterte’s perceived China pivot after the 2016 victory of the Philippines that set aside Beijing’s nine-dash line claims in the South China Sea at the Permanent Court of Arbitration, also located at The Hague.