THE Department of Justice (DOJ) yesterday said the now consolidated habeas corpus petitions filed by three children of former president Rodrigo Duterte before the Supreme Court (SC) are already moot since the government no longer have “legal and physical custody” over the former chief executive.
The justice department also said the cooperation extended by the government to the International Criminal Police Organization or Interpol in serving the warrant of arrest issued by the International Criminal Court (ICC) to Duterte is a political matter that is beyond judicial review.
These were the main arguments raised by the DOJ in its response to the habeas corpus petitions separately filed by Davao City Rep. Paolo “Pulong” Duterte, Davao City Mayor Sebastian “Baste” Duterte and Veronica “Kitty” Duterte.
The government response was filed by DOJ Undersecretary Nicholas Ty, who was authorized to represent the respondents in the case.
The Duterte siblings are asking the High Court to order the release and return of their father to Manila from the Hague where he is currently being held at the ICC detention center.
The DOJ took over as the defense counsel of the government following the decision of the Office of the Solicitor General (OSG) not to represent Executive Secretary Lucas Bersamin, Justice Secretary Jesus Crispin Remulla, DILG Secretary Jonvic Remulla, PNP chief Gen. Rommel Francisco D. Marbil, CIDG head Nicolas D. Torre III, DFA Secretary Enrique Manalo, AFP chief General Romeo Brawner Jr., and Antonio Alcantara, Executive Director of the Philippine Center on Transnational Crime who were named as respondents in the three petitions.
In recusing from commenting and defending the government, the OSG cited its “firm stance” that the ICC has no jurisdiction over the Philippines after its official withdrawal from the Rome Statute in 2019.
‘MOOT AND ACADEMIC’
In its submission to the SC, the DOJ pointed to Section 2, Rule 102 of the Rules of Court which states that a writ of habeas corpus is only enforceable within the Philippines.
“It indubitable that at the time the instant petitions were filed, former president Rodrigo Roa Duterte was no longer in the custody of Philippine authorities and was on his way to The Hague, The Netherlands, where he was ultimately detained at the ICC detention facility. This was subsequently confirmed by the ICC through the issuance of a transfer of custody,” it said.
It said that even if the SC issues a writ, it would be “physically impossible” to implement it since the 79-year old Duterte is already in The Netherlands.
“Clearly, therefore, since the relief prayed for could no longer be granted, the consolidated petitions are already moot and academic, warranting their outright dismissal by the Honorable Court,” the DOJ said.
The justice department also argued that a writ of habeas corpus cannot be issued when the subject person is in custody because of a judicial process or a valid judgment.
“The transfer of custody issued by the ICC readily shows that FPRRD (Duterte) was the subject of a warrant of arrest issued by the ICC,” it said.
It maintained that “the implementation of the (ICC) warrant domestically was proper and sanctioned by Republic Act 9851,” which it said provides that Philippine authorities may dispense with the investigation or prosecution of a punishable crime if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime.
RA 9851, which was enacted in 2009, defines and penalizes crimes against international humanitarian law, genocide and other crimes against humanity. It also organized the country’s jurisdiction over such crimes and designated special courts to prosecute them.
Under this law, the DOJ said “authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”
In surrendering Duterte to the ICC, the DOJ held that the government, in the public interest, has “opted to dispense with the investigation and prosecution of the alleged crimes against humanity committed by the former president and allow the ICC to continue the proceedings in an impartial and fair manner.”
The DOJ also cited Duterte’s repeated public statements that he is prepared to face the ICC charges.
“Accordingly, even if not rendered moot by subsequent events, the instant petition would also fail considering that there was no unlawful restraint, illegal confinement or imprisonment without sufficient legal basis, of FPRRD, as the implementation of the ICC warrant was in line with Section 17 of RA 9851,” it said.
OUTSIDE OF JUDICIAL REVIEW
The DOJ also underscored that the government’s cooperation with the Interpol in the service of the ICC warrant to Duterte is a political question, and therefore, beyond judicial review.
As an Interpol member-state, the DOJ said it is the government’s duty to ensure that the former attains its mandates, including mutual assistance of police authorities in arresting and detaining an individual in member-states.
“Thus, in extending assistance to the Interpol, the government of the Republic of the Philippines led by the President, is merely complying with its international obligations and performing his role as the chief architect of the country’s foreign policy,” it said.
“This, naturally, is well within the President’s discretion to do so, and the exercise thereof is patently a political question, which is beyond the review power of courts,” it added.
NO SC ACTION
Meanwhile, SC spokesperson Camille Ting said that during yesterday’s special en banc session, the magistrates merely “took note” and did not take any action on the motion for reconsideration filed by the lawyer of Duterte and Sen. Ronald “Bato” dela Rosa regarding the denial of their petition for the issuance of an injunction to stop the arrest of the former president and for the government to refrain from cooperating with the ICC.
“The SC noted without action the motion for reconsideration filed by former president Rodrigo Roa Duterte and Senator Ronald Dela Rosa regarding the SC’s denial of their prayer for the issuance of a temporary restraining order,” Ting said.
Ting said the en banc simply directed the respondents to personally file their comments on the matters raised in the supplement to the petition within a non-extendible period of 10 days from receipt of notice.
Ting said the SC en banc likewise directed Duterte’s children to “personally file a traverse” in response to the DOJ’s comment on their consolidated habeas corpus petitions within a non-extendible period of five days from receipt of notice.
DONE DEAL
Asked if it is still possible to bring back Duterte to Manila, Remulla said this is unlikely.
“Wala na ‘yun, tapos na ‘yun (That’s not possible, it’s done). It’s a done deal already. May hearings na doon eh (There are already hearings there). I think there’s judicial notice that hearings are ongoing already in The Hague. And there is a setting for September 23 so we rely on that,” the DOJ chief said.
He said the 79-year old former president has also repeatedly expressed his readiness to face the charges in the ICC.
“It’s a done deal. Nandun na sya. Saka sabi nya naman haharapin nya yung charges eh. I think he has repeated that to all of us. Lahat tayong Pilipino narinig natin na sinabi sa atin ng dating pangulong Duterte na haharapin nya ang kahit ano na paratang sa kanya kahit sa ICC. Kaya yun na yun, andun na sya (It’s a done deal. He is already there. And he has repeatedly said he is ready to face the charges.I think he has repeated that to all of us. All Filipinos heard from the former president that he is prepared to face whatever accusations in the ICC. So, that’s it, he is already there),” Remulla said.
EJK PROBE TO CONTINUE
Meanwhile, Remulla said the DOJ will continue its probe on the extrajudicial killings related to Duterte’s drug war even if the latter is already under ICC custody.
“Tuloy tuloy yun (That will continue), we’ve been doing our work on the EJKs, it’s slow grinding police work, law enforcement work that we have to pick up because the reports are not complete. We just have to recreate many of the records and many of the things that happened,” he said.
Asked if an ICC conviction would affect local EJK cases, Remulla said the DOJ, as much as possible, do not want the overlapping of cases.
“You cannot try the person twice for the same act. Iba yung sa ICC, iba yung dito. Iniiwasan natin yun. Di natin gusto isabay yan. Kasi kung isa nang jurisdiction ang naghi-hear ng isang bagay, wag na natin ulitin. Hindi makatarungan yun (The case before the ICC is different from the cases here. We’re trying to avoid that). We just want justice,” he added.
A task force created by Remulla formally started its investigation into the alleged extrajudicial killings and other abuses related to the controversial anti-drug war of the Duterte administration in November last year.
The task force is composed of state prosecutors and operatives of the National Bureau of Investigation.
It is chaired by a Senior Assistant State Prosecutor and co-chaired by a Regional Prosecutor with nine members from the National Prosecution Service.
Created under Memorandum Order No.778 dated November 4, Remulla directed the task force to “investigate, assist in the conduct of case build-up, and if warranted, file the appropriate criminal charges in court against the perpetrators and all those involved in extrajudicial killings during the previous administration’s anti-illegal drugs campaign.”
AMLC
Malacañang yesterday said it is leaving to the Anti-Money Laundering Council (AMLC) if it would request to freeze or seize the assets of Duterte.
“Malamang ito po ay ituturo natin sa AMLC (we will likely forward it to AMLC),” Communications Undersecretary and Palace Press officer Claire Castro said in a briefing when asked if the Philippine government would comply should the ICC request the freezing of Duterte’s assets.
“If there’s a need for that, ang AMLC walang sinisino. So, kung kinakailangan po para po mabigyan ng reparation, damages kung sinuman ang masasabing na-biktima then kailangan pong ibigay ang hustisya (If there’s a need for that, the AMLC does not discriminate. So, if it is necessary to provide reparation, damages to the victim, then justice must be provided),” she said.
Former senator Antonio Trillanes IV has said that the ICC may order the freezing of the assets of Duterte following his arrest, saying that this is part of the court’s procedures. – With Jocelyn Montemayor
