• Magdalo’s lawfare against Duterte

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    SASS ROGANDO SASOT

    CERTAINLY less audacious than occupying expensive hotels, just like what they did during Gloria Arroyo’s time, the Magdalo party-list’s efforts to impeach or indict President Rodrigo Duterte at the International Criminal Court (ICC) has regime change as the end goal. They’ve launched a coup d’état against the Duterte administration through another means: lawfare.

    A portmanteau word combining “law” and “warfare,” lawfare has been defined by US Air Force Maj. Gen. Charles Dunlap Jr. as “a strategy of using—or misusing —law as a substitute for traditional military means to achieve an operational objective.”

    Magdalo’s Rep. Gary Alejano and his colleagues would like to use the ICC to unseat Duterte, which they failed to do after the members of the House committee on justice unanimously dismissed their impeachment complaint against Duterte for lacking in substance. Alejano threatened to file a complaint at the ICC. Unfazed, Duterte encouraged him “to go ahead.”

    As I wrote in my column of April 27, 2017 (“The ploy to destroy Duterte’s external legitimacy”), “getting Duterte indicted at the ICC is the ideal goal of anti-Duterte forces. Like what happened to Kenyan President Uhuru Kenyatta, in order for Duterte to appear in court he would need to leave the Philippines and hand over power to the Vice President, until the trial ends. It would make Leni Robredo President even temporarily.”

    I was wrong on the last part.

    I’ve found that if ever Duterte were to be served a “summon to appear” at the ICC, he doesn’t need to be in The Hague all throughout the proceedings. The ICC’s Pre-Trial Chamber II issued a “summon to appear” rather than a “warrant of arrest” against Kenyatta because he wasn’t considered to be a “flight risk” and “that nothing…indicates that [he]would evade personal service of the summons or refrain from cooperating if summoned to appear.”

    A summon to appear doesn’t entail the detention of the accused. This is different from the fate of Sudanese President Omar al-Bashir who was issued a warrant of arrest. I believe the difference lies in the fact that ICC proceedings on the situation in Darfur was done through the directive of the UN Security Council, which was needed as Sudan isn’t a member of the ICC.

    Duterte’s situation is more akin to that of Kenyatta than al-Bashir. Like Kenyatta, Duterte could request for excusal from continuous presence at trial. ICC Trial Chamber V granted Kenyatta’s request “in order to permit [Kenyatta] to discharge his functions of state as the executive President of Kenya.” Kenyatta was only requested to appear physically in certain crucial stages of the trial. The trial chamber argued that requiring Kenyatta, a sitting president, to be present all throughout the proceedings “may well appear as a form of punishment” and thus violate the presumption of innocence the accused enjoys (Prosecutor v. Uhuru Muigai Kenyatta).

    If Duterte wants to be ballsier about it, his administration could lobby the Association of Southeast Asian Nation (Asean) to appeal to the UN Security Council (UNSC) to defer ICC proceedings against him. The Article 16 route could be used to, at least, let Duterte finish his term before ICC proceedings against him are initiated.

    Article 16 of the Rome Statute gives the UNSC the power to request the ICC to delay investigations or prosecutions for a renewable period of 12 months. The African Union did it for al-Bashir. However, the UNSC did nothing. But the UN Security Council might be prodded to invoke Article 16 of the Rome Statute in the case of Duterte if doing so would help maintain or restore international peace and security.

    In November 2011, in a speech before the UN Security Council, Yury Fedotov, executive director of United Nations Office on Drugs and Crime (UNODC), declared that illicit drug trafficking is a major threat to international peace and security (UNODC, November 23, 2011). Meanwhile, during the 33rd Asean Ministerial Meeting in July 2000, foreign ministers of Asean member countries recognized “the threat from drug abuse and drug trafficking on the security and stability of the Asean region.”

    With the right messaging, the Philippines war against drugs and narcopolitics could be deemed necessary for the maintenance of international peace and security. ICC interference in the Philippine could weaken the ability of the Duterte administration to dismantle the apparatus of transnational drug syndicates, which made the Philippines a major transshipment point of illegal drugs.

    In the guise of pursuing justice, ICC interference could obstruct the campaign of the Duterte administration against illegal drugs and narcopolitics, which are necessary not only for the security of the Philippines but of the Asean region as well. Thus, it’s in the interest of Asean to back the Philippines against any foreign interference that wittingly or unwittingly strengthens the position of the other side of the war on drugs—the transnational drug syndicates.

    Magadalo’s lawfare against Duterte is embedded in that larger theater of war. As Alejano et al. move to demolish Duterte’s external legitimacy through their lawfare, who exactly benefits? For sure, it’s not the families, communities and cities wishing to liberate themselves from the terror and violence wrought by shabu.

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    13 Comments

    1. Magdalo if you trace the history are groups belonging to Emilio Aguinaldo the group who plot and killed Gen. Luna infront ot Aguinaldos mother and killed Supremo Andres Bonifacio and raped his wife Oryang. Andres Bonifacio’s clan had to changes surnames and exiled to remote places being hunted and killed by Magdalo faction. The Magdiwang faction were the real heros fighting for the Filipinos during Spanish and American war. Emilio Aguinaldo was a traitor sold our country to Americans and then to Japanese as corroborator with Benigno Aquino Sr. and Manuel Roxas all on their cases of treason. Everybody knew this even historians now will you believe Magdalo, Luyang Dilaw, Mar Liar Roxas, Jun Emilio Abaya, Leni Tawa Tawa Robredo??? Ingat mga Millenials magsaliksik at pagaralan mabuti ang kasaysayan Manuel Roxas time when Japan paid billions for war rehabilitation gone with the wind where we could have acquired fighter jets and maybe aircraft carriers same with Billions of Donations and Yolanda Funds with Mar Liar Roxas gone with the wind too. Ingat Millenials Ingatan nyo and inyong henerasyon!

    2. There is a big difference between the Constitution of Kenya 2010 and the Philippine Constitution and Jurisprudence with respect to the immunity of the President from suits. In Kenya, the President is immune from domestic suits but may be prosecuted before the ICC. In the Philippines the President is immune from suits may it be before any local or international court.

      To prove this matter let us take a look at the relevant provision of the Constitution of Kenya of 2010.

      143. (1) Criminal proceedings shall not be instituted or continued
      in any court against the President or a person performing the functions
      of that office, during their tenure of office.
      xxx
      (4) The immunity of the President under this Article shall not
      extend to a crime for which the President may be prosecuted under any
      treaty to which Kenya is party and which prohibits such immunity.

      From the foregoing, it is clear that the Constitution of Kenya expressly provided that the President may be prosecuted before any court under a treaty to which Kenya is a signatory to.

      However, under the Philippine laws, Section 17 of Article VII, of the 1973 Constitution declares that the President is immune from suits:

      “The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure;

      “The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.”

      While it is true that the 1987 Constitution did not restore the above-cited provision of the 1973 Constitution, the Supreme Court has declared in its decision that the presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution.” ( Lourdes Rubrico et. al. vs. Gloria Macapagal-Arroyo et. al., G.R. No. 183871, 2010).

      The rationale or wisdom behind said ruling was explained by the Supreme Court in this wise:

      “Settled is the doctrine that the President, during his tenure of office or actual incumbency,may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.” (David et. al. vs. Macapagal-Arroyo et. al., G.R. No. 171396, 2006)
      http://www.manilatimes.net/sitting-president-immune-suit-absolutely/296134/

      Now you might argue that the Philippines is a signatory to the Roman Statute which created the ICC therefore the said court has jurisdiction over the person of the President of the Philippines. This contention is untenable.

      Remember that Roman Statute is an international law to which the Philippines is a member of. By law of incorporation, international laws become part of the laws of the land. However laws have their hierarchy and the Supreme law of the land is the Philippine Constitution. Meaning, any law which is not consistent to or contrary to the Constitution is void or has no legal effect at all. International law have the status of that of an enactment of the Congress. In which case all international laws are subject to Philippine Constitution. If an international law is contrary to the Philippine Constitution, then it has no force and effect within our land.

      The Roman Statute says ICC can prosecute nationals of member states but the Philippine Constitution states that the President is immune from suits. So which one prevails?

      The Philippine Constitution prevails. Any indictment issued by the ICC against the President of the Philippines will have to be dismissed for lack of jurisdiction over the Person of the President of the Philippines as this is a privilege stated in our Constitution. Any warrant of arrest issued by the ICC will have no force and effect within the Philippines.

    3. Nice options but we can also simply disregard the ICC just like what Russia did and US continuously do

    4. some bully countries just want to start chaos and when it happens, they are nowhere to be found. leaving a bunch of refugees, homeless and hungry people, orphans and thousands of dead bodies. all for the control of a country and its natural resources. it happened in other countries before, it happened in this country before and it could happen here this time. all they need are filipinos the likes of leni,de lima, trillanes, alejano and others. remember libya.

    5. What they are doing would not help improve Filipino lives. It is just for personal -selfish interest. I would not let them succeed in their idiotic plan.

    6. Let’s not forget, one judge in ICC is a lackey of the yellows; connected to Inquirer and is itching to get the proceedings done.

    7. Bring it on….. Duterte along with the Filipinos can bring ICC down to her knees.

    8. “we are human, but with no rights”
      lgbtq philippines.

      Recent studies show that transgender people experience brain shrinkage, have higher rates of mental health problems, and a higher incidence of drug abuse.
      In essence, they have a similar pharmacological/neurological profile as drug addicts and also demonstrate anger management issues etc.
      will they be next on duterte’s list.

      • I see because of such a well-written article, you’re just attacking Sass personally.

        How pathetic.

      • James which recent studies are you talking about? I would like to read your sources like a medical journal perhaps? Cite your reference(s) if you truly have, so everyone will get a chance to scrutinize and validate your “conclusion”.
        Otherwise, please do yourself a favor and take your brain elsewhere.

        And Sass, please continue to educate/inform us, the Filipino people. We owe you big time.

      • Roxas Marimar on

        Typical weak people can’t defend an argument so personal attack is the only options. Guess what they love showing imaginary research/study. :V

    9. I hope ICC have the highest standard in entertaining complaints against a democratically elected President of a democratic Republic. I hope ICC with all its resources, including brilliant minds, would not let its organization be used just by some local politicians and some shady international drug lords hiding under the skirts of human rights advocates.

    10. these people care only what they think. do not consider the consequences. they are forgiven all the time by PRRD, but they failed to realize that the FILIPINO PEOPLE would not even give them an inch if in case they succeed on their stupidity. CAST IN STONE.