Invitations to April 10 inquiry sent to Bersamin
SENATE President Francis “Chiz” Escudero yesterday said Cabinet officials have committed to attend this week’s hearing of the Committee on Foreign Relations after all of them opted not to attend the inquiry last week.
The committee, which is chaired by Sen. Imee Marcos, is looking into the circumstances related to the March 11 arrest and turn-over of former president Rodrigo Duterte to the International Criminal Court (ICC) in the Netherlands.
In an interview with radio dzBB, Escudero said he separately talked with the Cabinet members and urged them to participate in the Senate probe so the situation will not end in a constitutional crisis.
He said he likewise spoke with Marcos about her request for the issuance of subpoenas against the Executive officials.
Escudero did not provide details as to what other matters he discussed with Marcos and the Cabinet officials.
“Minabuti kong mag-tulay sa pagitan ng executive department at ng Senado. Nais kong iparating na sa April 10 imo-move yung hearing kung saan dadalo ang mga opisyal na inimbitahan ni Senator Imee. Hindi ko alam kung sinu-sino specifically pero hindi na sila hindi dadalo. May dadalo sa pagdinig ni Senator Imee sa April 10 (I took it upon myself to act as a bridge between the executive department and the Senate. I want to inform everyone that the hearing has been moved [from April 8] to April 10 [Thursday]. Cabinet officials invited by Senator Imee will attend the hearing. I do not know who have been invited but the good thing is that they will attend. There are Cabinet officials who will attend Senator Imee’s hearing on April 10),” Escudero said.
He said he was able to convince both sides – the Executive and the Senate – not to further widen the divisiveness that Duterte’s arrest has caused among Filipino people.
“Hindi ba sinabi ko na yung pagdinig hindi dapat mag-ugat dito ang dagdag pang hidwaan, away, at bangyan? Di ba ang sabi ko na hangga’t maaari pagmulan ito ng pagkaka-isa, paghilom at mas malalim na pagkakaunawaan? At magagawa lamang yan kung ang mga katanungan ay masasagot nang hindi kaliangan magbanggaan sa pamamagitan ng paggamit ng executive privilege sa kabilang banda, at paggamit naman ng subpoena ng Senado sa kabilang banda (I have said this before that the hearing should not cause further conflict and divisiveness. I also said that the hearing should unite, heal, and bolster deeper understanding. And that can only be achieved if the questions are answered without the need to invoke executive privilege, on one hand, and the issuance of subpoenas by the Senate, on the other hand),” he said.
He denied that the threat of being subpoenaed by the Senate forced the Cabinet officials to agree to attend the next hearing.
“Ayaw kong bigyan ng motibo yun dahil sa kabilang banda puwede rin naman nilang sabihin, subpoena, pero sinong pulis ang susunod kapag ipapahuli mo ang DILG secretary? Sinong pulis ang susunod kung ipapahuli mo ang DND secretary? Yun ang binabanggit kong constitutional crisis
(I don’t want to consider that as a motive [for them to attend] because on one hand, they can say to just issue a subpoena [on the Cabinet officials] but will policemen obey if they were to arrest the DILG secretary? Will they follow us if they will be ordered to arrest the defense secretary? That will surely lead to a constitutional crisis),” he said.
“Nagbabayangan yung dalawang institusyon. Hindi sinusunod ng isang institusyon yung isang institusyon na ang pananaw niya siya ang tama, siya ang legal. Hangga’t walang desisyon ang Korte Supreme, eh di suspended animation tayo. Constitutional crisis ang tawag doon na ayaw kong dumating sa ganoong punto (Two institutions are trading barbs. One institution does not want obey the other. They both think that they are right, they are legal. Without a Supreme Court decision, we will be in suspended animation. That is what we call a constitutional crisis which I do not want to happen),” he added.
Among others, Escudero said Marcos has specifically requested the attendance of CIDG chief Major Gen. Nicolas Torre III in the inquiry.
Torre led the team that served the ICC arrest warrant on Duterte.
Escudero said Marcos sent the invitations to the Cabinet officials to his office, which he in turn transmitted to the office of Executive Secretary Lucas Bersamin.
He said the Cabinet officials can still invoke executive privilege but it will depend on the questions to be asked by senators.
“Ayon sa Korte Supreme… kung ano ang saklaw nito ay dapat dini-determina ng executive at hindi mo, hindi ko, at hindi ng Kongreso. Nasa kanila yan kung anong parte ng national security at kung parte nga ba yan ng usapan sa kanila ni Pangulong Bongbong Marcos (According to the Supreme Court… the scope of executive privilege will be determined by the executive – not you, not me, not Congress. It is up to them if what part of national security are they allowed to openly discuss or what is based on their talks with President Ferdinand Marcos Jr),” he said.
Escudero expressed hope that the next hearing will have fruitful discussions that will enlighten the people on the details surrounding Duterte’s arrest and eventual turnover to the ICC.
“So, inaasahan ko na magkakaroon ng buhay na palitan ng pananaw, tanungan, at sagutan at nang magpatuloy ang pagdinig ni Senator Imee (So, I am expecting lively discussions and exchanges so that the hearing of Senator Imee can proceed),” he said.
MEASURES
Escudero said he is hopeful that the committee will craft measures once it wraps up the inquiry.
Among them is the possible amendment of the International Humanitarian Law, clarification on the Bill of Rights under the 1987 Constitution, and the extent or limitations of an international judge’s order on local residents.
“Are the judges mentioned in our laws include ICC judges? Does our Bill of Rights also cover judges from other countries or local judges alone? Can any Filipino citizen question the legality of an issued warrant signed by a judge from other country? Is the issuance of [an international] warrant against any Filipino recognized under our Constitution?” he said in Filipino referring to the measures that he wants the committee to craft.
He said another clarification is in connection with Article 59 of the Rome Statute related to the arrest proceedings in the custodial State. The provision states that the arrest of a person wanted by the ICC applies only when the custodial state (the country where the suspect is arrested) is a state party to the Rome Statute.
He noted that the Duterte camp has been using this provision as basis for its claims that the arrest of the former president was unlawful.
The Philippines’ withdrawal from the Rome Statute took effect on March 2019.
“Halimbawa ng mga abogado ni Duterte na walang bisa yan, wala na tayo diyan, bakit in-execute pa yan. Tapos parehong boses sasabihin niya, hindi niyo sinunod yung (Article) 59. Umalis na nga tayo diyan. Paano magiging basis yan? So, may basis ba talaga siya o wala? (An example of this is the claim of Duterte’s lawyers that the warrant of arrest has no basis because the Philippines already withdrew from the Rome Statute. But they are also saying that the Philippine government did not follow Article 59 [of the Rome Statute] as the country is no longer a member of the Rome Statute. So, how can that be their basis? Is there really a basis or none?),” he said.
ARREST DOCTRINES
Escudero acknowledged, though, that the ICC does not care how a wanted person is arrested as long as he or she is brought before the international court to stand trial.
He said there are two doctrines in the arrest of wanted persons. First is “male captus, bene detentus,” or “wrongly arrested, rightly detained.” And the second, “male captus, male detentus,” or “wrongly arrested, wrongly detained.”
“Yung maling pagkakahuli puwedeng magdulot ng dalawang epekto – matuloy ang pagdinig or trial, at hindi puwedeng matuloy yung pagdinig o trial. Sa kaso ng ICC, eight out of 10, humigit kumulang 80 percent ang sinunod nila ay ‘male captus, bene detentus’ [wrongly arrested, rightly detained]. May problema man sa pagkaka-aresto, tinuloy pa rin nila yung pagdinig. Pero 20 porsyento o 2 out of 10 hindi nila tinuloy yung pagdinig. Hindi ko alam kung saan babagsak yung kaso ni dating pangulong Duterte sa mata ng ICC judges (A wrong arrest can have two effects – the trial will proceed or the trial will not proceed. In the case of the ICC, 80 percent or around eight out of 10 cases, it followed the doctrine ‘male captus, bene detentus’ [wrongly arrested, rightly detained]. There was an issue in the arrest but the ICC nevertheless proceeded with the trial. But there was also 20 percent or two out of 10 cases where the ICC did not proceed with the trial. I have no idea how the ICC judges will look at Duterte’s case,” he said.
