Can Duterte request bail, strike plea bargain at ICC?
What are Rodrigo Duterte’s and co-respondents’ options at the International Criminal Court?
Can Duterte seek “interim release?” After all, his trial will begin six months from now on Sept. 23.
Yes he can, former ICC judge Raul Pangalangan says.
But ICC may have reservations due to bad experience. It granted Kenya President Uhuru Muigai Kenyatta provisional release. He did return for trial. But witnesses against him vanished. ICC prosecutors withdrew charges of crimes against humanity.
Can Duterte strike a plea bargain? ICC rules make no mention of plea bargains such as those openly made in courts of some member-states.
Pangalangan handled one such case as president of a trial chamber. The prosecutors made no mention of plea bargaining, but it was obvious in the sequence of events and presentation of arguments.
Can Duterte’s co-respondents now cause the filing of criminal charges against themselves in Philippine courts, if only to elude ICC jurisdiction?
ICC will determine if such case is genuine and moving in court, says Pangalangan. If ICC finds out the fakery, it can order arrest.
Why is Duterte’s trial six-long months from now?
The three judges who set the date comprise a pre-trial chamber. Their job was only to assess preliminary evidence, issue a warrant if necessary and determine if the right person was arrested.
A permanent trial chamber will hear the case, Pangalangan says.
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To date, no criminal case has been filed in any Philippine court against Duterte for extrajudicial killings during his presidency.
This implies failure of justice. So the ICC stepped in.
Who’s to blame? Retired Supreme Court justice Antonio Carpio explains “the elements of our justice system:”
“(1) Criminal investigation is conducted by PNP and NBI – both under control of the President.
“(2) Preliminary investigation is by DOJ, under control of the President.
“(3) Preparation and filing in court of criminal information is by DOJ, under control of the President.
“(4) Prosecution of criminal case is by DOJ, under control of the President.
“(5) Promulgation of judgment is by the Judiciary, which is not controlled by the President.
“Who’s to blame that no criminal case has been filed in court until now against Duterte for the thousands of EJKs in 2016-2022?
“When Duterte was president no criminal case could be filed against him for two reasons. One, he naturally never allowed himself to be investigated or criminally prosecuted by agencies under his control. Two, by jurisprudence the president cannot be criminally sued while in office.
“That’s why, when Duterte was president, the Philippine government was unable and unwilling to investigate or sue Duterte for the thousands of EJKs.
“Failure to investigate or sue Duterte for EJKs was not the Judiciary’s fault. Case investigation, filing and prosecution are Executive functions under the president. The court cannot decide if no case is filed before it.
“That’s why in 2021 the ICC held that the Philippine government was unable and unwilling to investigate and prosecute Duterte. Thus, the ICC had jurisdiction to investigate EJKs during Duterte’s presidency.”
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In March 2019 Duterte withdrew the Philippines from ICC. In March 2021 the SC affirmed that the Philippines was subject to the Rome Statute during ICC membership.
Menardo Guevarra became Duterte’s justice secretary April 2018. He is now Bongbong Marcos’ solicitor general.
Last March 14 Duterte’s former executive secretary Salvador Medialdea entered his appearance at the ICC as Duterte’s lead counsel.
On March 17 Guevarra recused from defending Executive officials in an SC case against Duterte’s ICC arrest.
Guevarra and Medialdea were law partners.
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Two ex-AFP officers dispute my column of March 12. Particularly, that (1) Duterte removed the Philippine Air Force from Sangley Base, (2) he also tried to remove the Philippine Navy and (3) he favored a notorious China state firm that would have landfilled Sangley as an international airport.
Inconsistently, they claim that the transfer of PAF’s 15th Strike Wing was planned as far back as the Gloria Arroyo or Noynoy Aquino presidencies.
I stand by my column, which I based on documents. Foremost was the “PN Proposal for the Retention of Naval Base Cavite Complex.” That August 2020 position paper was drafted by PN officers and presented by flag officer-in-command Vice Adm. Giovanni Carlo Bacordo to then-defense secretary Delfin Lorenzana.
Other documents: inventories of Sangley buildings, strategy studies and comments by military and civilian experts. Those formed the bases of my three reports in 2020:
• “Removing Sangley naval base will leave Manila defenseless,” Sept. 4;
• “These are what Sangley airport works will dislocate,” Sept. 9;
• “China state units creeping into Phl armed forces bases,” Sept. 23.
My two critics might have been confused. There was first an unsolicited proposal to NEDA to develop Sangley into an international air and sea port, but which got nowhere.
The plan was revived by the Cavite provincial capitol, a Philippine partner and China Communications and Construction Company. The three presented it to Duterte in Beijing on Aug. 30, 2019, according to various news items.
CCCC was the same firm that illegally reclaimed Philippine reefs into Chinese navy island-fortresses. Duterte’s spokespersons confirmed its reclamation bid of Sangley, also in various news items.
Lorenzana presided over the transfer of PAF’s 15th Strike Wing to Lumbia Airport, Misamis Oriental on Feb. 1, 2017. The event was widely reported.
Another former FOIC, Vice Adm. Alexander Pama, remarked back then that “the strategic importance of retaining the Navy at Sangley was a no brainer.”
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