Former ICC Judge Raul Pangalangan calls Duterte’s idea of legal assistance to cops, soldiers an “astute move”
MANILA — A former International Criminal Court judge took note of President Rodrigo Duterte's remarks taunting ICC investigators during his State of the Nation Address Monday.
Raul Pangalangan, who retired from the ICC in May this year, shared his observations on Duterte’s speech in an online forum Wednesday organized by the Stratbase Albert del Rosario Institute for Strategic and International Studies.
Pangalangan, a former UP College of Law dean, is the first-ever Filipino to have served as judge in the international tribunal based in The Hague in The Netherlands.
“We all heard the President, he's not backing down on his draconian policies at all, openly taunting the ICC investigators,” Pangalangan said at the start of the forum.
He was referring to Duterte’s remarks daring the ICC to “record” his statements egging law enforcers to kill those who will get in the way of his anti-drug campaign.
“I’ll never deny, and the ICC can record it: Those who destroy my country, I will kill you," said Duterte.
"And those who destroy the young people of our country, I will kill you. Talagang yayariin kita (I will really finish you) because I love my country. We all can do it the legal way, but it would take you months and years," he added.
Former ICC Prosecutor Fatou Bensouda had asked the ICC Pre-Trial Chamber in May this year for authority so her office could proceed to formally investigate drug war killings in the country, which she said, was perpetrated by Philippine security forces themselves or by vigilantes who were either law enforcers or private citzens paid by police to kill civilains.
Duterte, in his speech Monday, alluded to the ongoing proceedings at the ICC when he joking that law enforcers will be charged with him before the ICC.
A group of rights defenders had filed a supplemental communication with the ICC in February this year accusing Duterte of breaking international law by threatening to arrest Bensouda should she step foot in the Philippines.
They accused Duterte of Article 70 of the Rome Statute covering offenses, including “impeding, intimidating or corruptly influencing an official of the ICC not to perform, or to perform improperly his or her duties” and “retaliating against an official of the Court.”
This however was not part of Bensouda’s recommendation.
Pangalangan, in his brief message, did not discuss what the consequences might be of Duterte's remarks.
But for him, the more striking aspect of Duterte’s speech was his call for a law to provide free legal assistance to cops and soldiers accused of wrongdoing in the performance of their duties.
This could include, he noted, “what can presumably include charges connected with the anti-drug campaign.”
“It is actually a very astute move, because it puts our vaunted human rights lawyers in a quandary. They who speak highly of, precisely, this right to due process,” he said.
“I wish though that those same rights had been given to the victims as well,” he added.
Justice Secretary Menardo Guevarra on Tuesday defended the idea of providing legal assistance to law enforcers by invoking due process.
“Legal assistance is not the same as legal protection. It is just providing law enforcement agents some means to defend themselves in court for acts done in relation to their official duties, such as fighting terrorists and criminals," he said.
"Unless proven guilty, they are presumed innocent. Like everyone of us, they are also entitled to due process of law,” he explained.
Various groups like the National Union of Peoples’ Lawyers considered the move unnecessary but in its statement, also had to acknowledge that “everybody including our military and police are entitled to constitutional and even universal rights to due process which includes the right to counsel.”
Pangalangan also highlighted the President’s seemingly inconsistent statements on the Philippines’ arbitral award on the South China Sea during the SONA, even as many other governments have recognized it.
“If we listen to the SONA this Monday, the President's position on this matter depends on which part of the speech you heard,” he said, pointing out that at the start, Duterte unequivocally said that The Hague decision is good law.
“We asserted the arbitration ruling on the South China Sea, bilaterally at the ASEAN and finally at the United Nations,” Pangalangan quoted Duterte as saying. “Let me talk about what I said in September of last year. The arbitral Award is now a part of international law and beyond compromise, and beyond the reach of passing governments to dilute, to diminish or abandon.”
But a few paragraphs later, the President, he said, changed tune, saying China was never part of the arbitration, and insisting on the award will mean egging him to go to war with “the region's most powerful military.”
“So notice that the categorical affirmation of the triumph at The Hague early on in the speech, was somehow diluted toward the end,” Pangalangan said.
The former ICC judge’s comments were made in the context of pointing out what makes this year’s SONA different from the previous yearly speeches.
Aside from the looming ICC probe and the South China Sea arbitral award, Pangalangan also cited the pandemic as a key distinction for this year’s SONA.
He called the pandemic the “biggest crisis of all” which offers an opportunity for well-meaning Filipinos to unite.
However, he voiced out disappointment that the speech repeated campaign promises made 5 years ago.
“In his first SONA in 2016, not even 4 weeks into his presidency, it was fine if he spoke of his campaign promises and of how he would enact them into law and public policy…,” he said.
“But for the SONA the other day, it was only fair for us to expect that he would report on which of the promises he has kept, which policies have been delivered? And conversely, which plans and programs have faltered and gone awry. Exactly what Professor Dindo Manhit called an honest reality check. After all, five years is long enough to check which of them have not moved forward,” added.
Retired Supreme Court associate justice and Ombudsman Conchita Carpio-Morales, who closed the forum, also shared her thoughts, based also on what the speakers shared.
“There’s a congruent view that most of his promises when he was running for election were not complied with. For one, as already stated, he said he was going to curtail the drug problem in 6 months. It’s been more than 5 years but to date the drug problem has not been controlled and in fact, I think it’s getting worse,” she said.
“Everyday we get almost daily accounts of drugs being imported into the country and probably coming from China although the President was not ready to mention the name of China because well, as is known by everybody, he loves Xi Jinping and therefore he was careful enough not to displease his inamorata,” she added.
Ateneo School of Government non-resident fellow Dr. Edilberto de Jesus said during the forum that while Duterte's 15-point legacy agenda was brilliant in prioritizing ending corruption, the illegal drug trade and illegal trafficking, it was a terrible blunder to promise achievements in 6-7 months.
De Jesus said Duterte underestimated the complexity of the drug issue and also treated it as an existential threat even though the Philippines is nowhere near a narco-state.
The President also supposedly overestimated his capacity to deal with the problem and the effectiveness of his top-down style which worked in Davao City but not on a nationwide scale.
But the bigger issue for De Jesus is how to explain the President’s continuing popularity despite his failure to make good on his promises.
“When you look at the Duterte administration, his most outstanding accomplishment…is maintaining a high trust and approval rating in the 5 years of his administration. This, I have found difficult to understand, but the review of his administration from national bodies, national intellectuals as well as foreign reviews of his success always focused on his ability to retain the trust and approval of the populace. And I think this is one of the things that we will need to address moving forward,” he said.
The Stratbase ADRi forum was intended to assess Philippine governance for the past 5 years under the Duterte administration.
Other speakers included Prof. Julio Teehankee and Stratbase ADR Institute non-resident fellow Richard Heydarian who talked about the resurgence of populism and iLEAD’s Zy-za Suzara who talked about how the budget under the Duterte administration has largely favored the President, the police and military, and politicians.
SWS’ Mahar Mangahas and Pulse Asia’s Ronald Holmes discussed results of their surveys on the national opinion of the public on the West Philippine Sea issue and on top public concerns, respectively.
InciteGov’s Mardi Mapa-Suplido also talked about what pro-democracy forces should do in the lead-up to the 2022 national polls.