But govt violated rules on surrender process
FORMER Supreme Court Associate Justice Adolfo Azcuna Jr. yesterday said the warrant of arrest issued by the International Criminal Court (ICC) against former president Rodrigo Duterte is legal, but Philippine authorities may have violated the law in immediately surrendering the former president to the international court.
Azcuna made the statement during the third hearing of the Senate Committee on Foreign Relations, which chairperson Sen. Imee Marcos called to determine the circumstances related to the March 11 arrest of Duterte.
“In my view, the warrant for arrest is legal,” he said, explaining that the Philippines has a “residual obligation” to cooperate with the ICC despite its withdrawal from the Rome Statute.
He cited Article 127, Paragraph 2, of the Rome Statute which states that “a State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
Based on this provision, Azcuna said the arrest warrant remained binding.
“So, again, you go back to the question: Is the Philippine situation something already under consideration by the court, by the ICC, prior to withdrawal? In my view, Madam Chair, the answer is yes, because as of February 8, 2018, prior to our withdrawal, Fatou Bensouda, the former ICC prosecutor already said that the Philippine situation is under preliminary examination as of that date,” he said.
The Philippines became a member of the Rome Statute, which created the ICC, in 2011. It’s withdrawal from the statute took effect in 2019.
However, Azcuna said that to his opinion, the surrender of the former president to the ICC violated Philippine laws when arresting authorities failed to bring Duterte before a local court before he was transported to The Hague.
He cited Article 59 of the Statute of Rome which requires the “custodial state,” in this case the Philippines, to first bring the arrested person to a local court to determine two things – first, if the arrested person is really the one named in the warrant; and second, if the person has been informed of the charges against him or her.
He said this was where the Philippine government may have violated the law since Duterte was not brought before a local court for judicial determination.
“This was not done. Therefore, there was, in my view, a violation in the act of surrender,” Azcuna said.
He said that for him, the government’s contention that Duterte’s surrender to ICC jurisdiction was on the basis of Republic Act 9851, would not hold.
He noted that while Section 17 of RA 9851 provides “that if a person is already being investigated for the crimes covered by this Act, this includes the crimes for which (former) president Duterte is being charged, is already being investigated by an international tribunal, the relevant Philippine authorities may surrender such person to the international tribunal,” it adds, that this should be “pursuant to the applicable extradition laws, extradition laws and treaties.”
He stressed that the phrase “pursuant to applicable extradition laws” is still applicable even if the Philippines is no longer a member of the Rome Statute, also under the principle of residual obligation.
“And therefore, our own law, Section 17 of Republic Act 9851 brought back the Statute of Rome even after the withdrawal because it requires that a surrender must be pursuant to the applicable treaty. And therefore, in this case, the applicable treaty remains the Statute of Rome, and this, we have to follow Article 59 of the Statute of Rome, which requires that the custodial state, namely the Philippines, must first bring the arrested person to a local court to determine two things – whether or not the person is really the one named in the warrant, second, whether or not the person has been informed of the charges against him or her,” he said.
Justice Secretary Jesus Crispin Remulla said the arrest of Duterte is a “case of first impression” since it was the first time that Section 17 of RA 9851 was implemented.
He insisted that what the government did was right, adding that extradition was not applicable on Duterte’s case since extradition had to be requested by the ICC.
Had the ICC requested the Philippine government to extradite Duterte, the government would not have acted on it since Manila is no longer a member of the Rome Statute.
He said the government recognized the ICC arrest warrant because it was an order to arrest an individual and was not directed as an order to the Philippines as a state.
“It’s a warrant issued against an individual, not against our state, not against the Philippine government,” he stressed.
Sen. Ronald dela Rosa said that its “very clear” in the Interpol diffusion notice that the subject person should be located and arrested “in view to extradition.”
“Assurances are given that extradition will be sought upon arrest of the person in conformity with national laws and/or applicable by lateral and multilateral treaties… Bakit hindi natin hinintay na yung ICC na mag-initiate ng extradition laban kay pangulong Duterte? (Why did we not wait for the ICC to initiate the extradition against the former president?)” Dela Rosa said.
Remulla said the Philippine government could have done what Dela Rosa said if the Philippines had not withdrawn from the Rome Statute.
“Hindi na po tayo member ng ICC eh. Kasi kung member po tayo ng ICC, makakatulong sana kay President Duterte na hindi po siya ililipad. Eh siya po mismo nag-atras ng ating membership… Kasi yun ang malinaw na malinaw po, may treaty po na kinakailangan para ho magkaroon ng extradition. Eh wala pong treaty kasi nga nag withdraw tayo sa ICC (We are no longer a member of the ICC. Because if we are still a member of the ICC, it could have stopped us from bringing the former president from to the Hague. But he ordered the withdrawal of our membership… It is very clear that we need to have a treaty before we can approve a request for extradition. But we do not have a treaty because we have withdrawn from the ICC),” he said.
‘MALE CAPTUS, BENE DETENTUS’
Azcuna said the said violations of the law committed by Philippine authorities in arresting Duterte will unlikely lead to the release of Duterte, who is now detained in the ICC detention center.
He said the ICC does not mind how an accused person has been brought to the international tribunal for him or her to face trial since it uses the doctrine “male captus, bene detentus (wrongly arrested, rightly detained),” which means that even if the arrest is illegal, the detention will still be considered as legal and would not automatically mean the release of the arrested person.
“They will balance the illegality of the arrest with the need to prosecute someone for very serious offenses under international law. In their view, the balance weighs in favor of prosecution, they will prosecute notwithstanding the violation of the procedure in the arrest and in the surrender,” Azcuna said.
He said “there will be consequences” for the violation of Philippine laws in relation to Duterte’s arrest but did not elaborate.
CONTEMPT
The Senate committee yesterday cited in contempt Special envoy Markus Lacanilao of the Office of the Special Envoy on Transnational Crime after he insisted that he did not know if Duterte was presented before a local court for judicial determination after he was arrested.
Marcos and Dela Rosa had repeatedly asked Lacanilao to confirm if the former president was brought before a competent court.
Marcos presented a document from the ICC showing that Lacanilao who oversaw the arrest of Duterte at the NAIA Terminal 3 up to his surrender to The Hague, signed on behalf of the Philippine government when the former president was turned over to the ICC.
Lacanilao, the Interpol’s representative to the Philippines, told the committee that he volunteered to accompany Duterte to The Hague because no other members of the Philippine Center for Transnational Crimes had their passports with them at the time.
Lacanilao repeatedly said he has no knowledge if Duterte was presented before a competent court since Prosecutor General Richard Fadullon had issued a certification that the government has knowledge that the former president has been arrested by virtue of the ICC warrant.
It was stated in the certification that the arrest of Duterte was “carried out in accordance with Philippine laws” and that it was also in accordance with the provisions of the Rome Statute.
“The following determinations were made by the Department of Justice, as competent authority of the custodial State, upon presentation of the arrested individual: 1) The warrant of arrest issued by the ICC applies to Rodrigo Roa Duterte; 2) The arrest was conducted in compliance with due legal process; 3) The rights of the arrested person were duly observed and respected throughout the proceedings,” the certification said.
It also stated that the Philippine government “has determined to deliver Rodrigo Roa Duterte to the ICC” in accordance to Article 59 (4) of the Rome Statute as it considered the gravity of the alleged crimes committed by the former president.
“In accordance with Article 59 (7), the arrested individual shall be immediately transported to The Hague and placed in the custody of the International Criminal Court,” it added.
Martin Delgra, one of Duterte’s legal counsel, said Lacanilao should not have solely relied on the DOJ certification “to attest to the fact as to whether he (Duterte) was brought to a local court or not.”
“Hindi po pinalabas yung former president to be brought to a local court (The former president was not brought to a local court). I think that would have been sufficient for him to say. But he keeps on saying that he does not know,” Delgra said.
Dela Rosa said the committee gave Lacanilao several chances to admit that Duterte was not brought to a local court but the latter insisted that he has no knowledge.
He then moved to cite Lacanilao in contempt.
“Ambassador Lacanilao, I find your answers very misleading. Kanina pa, yung mga sinasabi mo hindi o alam, hindi mo alam na hindi pala siya dinala sa competent court. Pati yung judicial authority hindi mo alam. I’m giving you a chance (Ambassador Lacanilao, I find your answers very misleading. You have been telling all along that you don’t know that the former president was not brough to a competent court. You don’t even know the judicial authority. I’m giving you a chance [to answer]),” dela Rosa said.
Lacanilao stood firm that he does not know if Duterte was brough to a competent court since he was not with the former president all the time when he was arrested.
Dela Rosa said Lacanilao was lying.
“So, you are lying. Madam Chair, I move to cite in contempt Ambassador Lacanilao,” Dela Rosa said.
Marcos said: “There’s a motion to cite you in contempt. I have to affirm. There being no contrary motion, we uphold the motion to cite Ambassador Markus Lacanilao in contempt.”
Remulla asked the panel to reconsider its ruling on Lacanilao. “It’s an extradition form. That’s why the questions are answerable in another jurisdiction but not in our jurisdiction. So, it’s very hard to answer something that works in a different manner… I hope we can reconsider the contempt citing because sir… kaya nila tinanggap yung certification po ng DOJ (The ICC accepted the DO certification) because under the system of the ICC, ang prosecutor (the prosecutor) is (considered as a) competent judicial authority. So. It’s very foreign to Ambassador Lacanilao,” Remulla said.
Marcos did not grant Remulla’s request.
Dela Rosa persisted that resource persons should answer who specifically ordered Duterte to be brought to the Hague, to which Remulla said it was “cleared” by the DOJ.
Dela Rosa was not satisfied with Remulla’s response.
“President Duterte is already at the Hague. We’re asking who sent him there,” he said.
At this point, Remulla invoked executive privilege, saying the matter cannot be discussed in an open hearing.
Remulla said this is the very reason why Cabinet officials did not attend the second hearing of the committee because they do not want to be “bullied.”
“That’s why if we try to make a person admit something that should not be admitted it means that there is something more to it …The clearance given by the DOJ was probably the most important part of it,” Remulla said.
