Phl justice system under ICC trial

For all intents and purposes, our government virtually entrusted the Philippine justice system to the International Criminal Court (ICC) at The Hague when it “surrendered” former president Rodrigo Duterte to face trial on alleged “crimes against humanity.” A few days after ex-president Duterte was flown to The Hague, Netherlands last March 11, the ICC pre-trial chamber read out to him at least 43 complaints of alleged extrajudicial killings (EJKs) in his deadly all-out war against illegal drugs while he was president and as former Davao City mayor.

Ex-president Duterte, who is turning 80 years old this March 28, will wait for and undergo the ICC process. In the meantime, he is staying in the medical center inside the ICC Detention Center in Scheveningen.

With ex-president Duterte placed under ICC custody, Department of Justice (DOJ) Secretary Jesus Crispin Remulla conceded the 43 EJK cases are now “extra-territorial” or beyond the jurisdiction of our country’s legal system. In our Kapihan sa Manila Bay news forum last Wednesday, Remulla invoked Section 17 of Republic Act No. 9851, or An Act Defining and Penalizing Crimes Against International Humanitarian Law as the applicable law on the “executive action” taken on the “surrender” of ex-president Duterte.

Remulla explained the Philippine government cooperated with the “diffusion request” issued by the International Criminal Police Organization. The “diffusion request” of the Interpol was coursed through the Philippine Transnational Crime Center (PTCC). The DOJ is included in this inter-agency body under the Office of the President.

Although our country has officially withdrawn from the Rome Statute, Remulla cited, the Philippine cooperation was with the Interpol as a separate entity acting as the law enforcement arm of the ICC on cases involving individual accused persons, not sovereign states.

The Rome Statute “is the founding treaty of the ICC, establishing the court’s jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, with the aim of ending impunity for the perpetrators of these crimes.” It was forged in July 1998 with 125 countries, including the Philippines, as original signatories.The Philippine withdrawal from the Rome Statute in March 2018 was deposited with the United Nations Secretary-General and took effect a year later.

The Justice secretary reiterated the government did the right legal procedures when he testified a day later at the Senate foreign relations committee chaired by Sen. Imee Marcos. He, along with his younger brother Interior Secretary Jonvic Remulla and other Cabinet members of President Ferdinand “Bongbong” Marcos Jr. (PBBM), were invited to shed light on the questioned procedures applied to the Interpol arrest of Mr. Duterte. The Remulla brothers joined Defense Secretary Gibo Teodoro and National Security Adviser Eduardo Año and other government, police and military officials summoned to the Senate probe.

Known as a staunch ally of the Duterte’s, the elder sister of PBBM called the public hearing to look into the regularity, legality and constitutionality of the act done by our government. In her opening remarks, she echoed the sentiments of Duterte supporters that the arrest here of a Filipino charged in ICC was done when the Philippines is not a member anymore of this body.

Sen. Imee presented private lawyers and constitutional experts to rebut the government’s justifications allowing the Interpol “diffusion arrest” by virtue of RA 9851. Crossing swords with the legal eagles in the Marcos Cabinet led by the Justice secretary, lawyer resource person Alexis Medina reminded them that domestic laws cannot “diminish” the constitutionally-enshrined Bill of Rights of each and every Filipino. Medina cited in particular the “liberty of abode” in flying out and “surrender” of ex-president Duterte to The Hague without first going through our own country’s judicial process.

Under intense grilling of Sen. Imee, Lt.Gen. Antonio Alcantara, executive director of the PTCC-Interpol National Center Bureau Manila, buckled, defending his agency as merely implementing “red diffusion,” interchanging it with the “red notice” issued by Interpol.

The Justice secretary 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 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 that were turned over to them by the House of Representatives.

“We have to get evidentiary value which we can use. We don’t make cases out of scuttlebutts,” he stressed.

He recalled many of these alleged EJK cases do not have any police record, or police reports nor were they found in police blotters. Because the alleged crimes were committed purportedly by policemen and other erring law enforcement authorities, it made the DOJ’s job more difficult to prosecute them.

The secretary 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 ago remain pending at the ombudsman, not the DOJ, Remulla added.

ICC presiding judge Iulia Motoc set on Sept. 23 this year as 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 court decide whether to press ahead with a trial. The ICC a process could take several months or even longer.

From at least two years to eight years at the most, the ICC grinds like the Philippine justice system.

No less than his equally feisty daughter Vice President Sara has practically given up hope that her ailing father could even return home to the Philippines. ICC-accredited British-Israeli lawyer Nicholas Kaufman, lead counsel of Mr. Duterte, is more optimistic that he could get his client released. “As far as I’m concerned, he’s being illegally detained here, and he should go back to the Philippines as soon as possible,” Kaufman quipped.

Of the five pillars of our country’s criminal justice system – law enforcement, prosecution, the courts, corrections and community – the Justice secretary pointed to law enforcement as the weakest link.