By Michael Henry Yusingco, LL.M
The Davao police has shown a readiness to enforce the arrest warrants that could be issued by the International Criminal Court (ICC) this month, if certain political personalities are to be believed. The operation to arrest Pastor Quiboloy was palpably well-planned. With a few exceptions, the police personnel on site clearly knew what they were doing.
But President Bongbong Marcos still has to decide whether his administration will serve the ICC warrant or not. This is not an easy decision to make because it would eventually mean an admission of weakness. Moreover, it can well be used as a precedent against him and his dynasty by future administrations.
Recall that in the case of Pangilinan vs. Cayetano, the Supreme Court explained that: “The International Criminal Court’s jurisdiction is “complementary to national criminal jurisdictions.” Complementarity means that the International Criminal Court may only exercise jurisdiction if domestic courts were “unwilling or unable” to prosecute.”
Hence, if President Marcos decides to enforce the ICC warrant, then this is tantamount to saying that his administration is “unwilling or unable” to investigate and prosecute the crimes perpetuated in the name of the War on Drugs of President Rodrigo Duterte. This effectively says to the international community that we have a broken legal system.
Arguably, deferring to the ICC can also be seen as a dereliction of duty on the part of the administration. Under the 1987 Constitution, it is the duty of the President to enforce the law. President Marcos really cannot claim that we have a functioning criminal justice system and then hand off to the ICC the job of prosecuting Filipino offenders.
But simply ignoring the ICC arrest warrant is untenable too. Given his historical baggage relating to Martial Law atrocities, this move can turn the polity against President Marcos. Undeniably, there is consensus amongst Filipinos that the casualties of the War on Drugs deserve justice, which many Martial Law victims still yearn for today.
Doing nothing would also confirm the criticism that he is kowtowing to a more powerful political dynasty to ensure his family stays in power. The projection of nationalistic independence will no longer fly given how dependent his administration has become on America for national defense. His Bagong Pilipinas legacy will be tarnished for sure.
But the truth is, if President Marcos and his administration are truly determined to secure justice for the victims of the Duterte War on Drugs, then they must explore other legal ways to accomplish this mission. The public too, must not be constrained by the two alternatives discussed above.
One possible option for President Marcos is to convene an ad-hoc body within the Depart of Justice (DOJ) to investigate and prosecute violations of Republic Act No. 9851 (RA No. 9851) or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
Pertinently, as per the Pangilinan vs. Cayetano decision, RA No. 9851 “echoes the substantive provisions of the Rome Statute”. So, the mandate of this proposed DOJ ad-hoc body would already cover matters that are under ICC investigation. With this move, President Marcos would thus satisfy society’s demand for justice for the drug war victims.
However, the mandate of the DOJ ad-hoc body must specifically focus on crimes committed under RA No. 9851. It cannot explicitly target particular personalities involved in certain criminal activities as this would likely meet the same fate of President Noynoy Aquino’s Truth Commission of 2010. (See Biraogo vs. The Philippine Truth Commission of 2010)
Just to recap, this proposed DOJ ad-hoc body will be tasked to investigate and prosecute crimes under the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Its mandate will not be solely focused on the Duterte War on Drugs, but it will already include the cases being handled by the ICC.
Setting up this DOJ ad-hoc body is within the power of the President. More importantly, it will demonstrate to Filipinos that this is not a political witch hunt. That it is not about revenge against a potential political adversary. That this is just about giving justice to Filipinos who have been victims of crimes against humanity in their own country.
