MANILA — The justice department has found another basis to say the Philippine justice system is working — the US congressional delegation’s recent visit to detained former Sen. Leila de Lima at the PNP Custodial Center.
Justice Secretary Jesus Crispin "Boying" Remulla himself mentioned this at the Kapihan sa Manila Bay forum Wednesday as he reiterated the country's position on the International Criminal Court’s investigation into drug war deaths in the Philippines.
Two Muntinlupa courts last week allowed the US delegation, led by Sen. Edward Markey, to visit the former lawmaker who has been detained on drug charges for the past 5 years.
"Our judicial system is working… Just the fact that sabi ko nga (as I've said) the Americans went to court to ask for permission to visit Senator De Lima, which was granted by the court, just shows that the court really determines the action of people where they are merited or not," Remulla said.
Initially barred by the Philippine National Police (PNP) from visiting De Lima on Thursday last week, the US delegation was finally able to visit her on Friday after obtaining court approvals.
The Department of Justice (DOJ) prosecutors did not object to the motion, in accordance with Remulla's promise to the US delegation that his department would not oppose their bid to visit De Lima.
Remulla said during Wednesday’s forum that he had told the Department of Foreign Affairs (DFA) a day before the barred visit that the American legislators should first obtain court permission since De Lima is supposedly under the jurisdiction of the courts.
De Lima on Saturday thanked the DOJ for not opposing the motion but insisted that court approvals are not required for foreign nationals to visit detainees under the custody of the PNP.
Citing the PNP’s own guidelines, she said her and Sen. Markey’s team complied with the requirements.
The US Embassy, she said, made a request to the DFA through a note verbale, which the DFA endorsed to the PNP.
De Lima herself also wrote a letter to the PNP but said both letters were not acted on.
"Since the PNP leadership was already notified well in advance of the planned high-level visit of US lawmakers, I was deeply frustrated and felt unjustly treated when the PNP announced on the very day of the scheduled visit that it cannot push through without a court order," she said in a statement.
"I felt that it was clearly a case of unfairly changing the rules in the middle of the game," she added.
PH JUSTICE SYSTEM WORKING?
That the Philippine justice system is working has been the Philippine government’s position as it faces an ICC probe on the thousands of drug war-related deaths during the past administration, which could constitute crimes against humanity within the jurisdiction of the ICC.
"We are currently investigating these crimes," Remula said, citing around 12 policemen who have been charged with murder.
"We are looking for witnesses for extra-judicial killings…The NBI (National Bureau of Investigation) and DOJ will process the information. We will use the WPP (Witness Protection Program) to protect those who will give us the leads, the testimonies and we are not stopping. Hindi ho tayo tumitigil sa pag-imbestiga ng mga krimen na nangyari noong nakaraan at ito po ay hindi pa nasasaraduhan, considered an active case," he stressed.
(We have not stopped investigating previous crimes and these are not closed, they are considered active cases.)
But various human rights groups and even ICC Prosecutor Karim Khan pointed out that the probes do not involve high-ranking government officials and other crimes within the ICC’s scope and most do not lead to criminal prosecution.
Out of some 6,000 officially-recognized drug war-related deaths, only 1 case has led to convictions.
In seeking a resumption of the drug war probe, Khan said the Philippine government has not demonstrated it has investigated or is investigating crimes within the ICC’s jurisdiction.
"We have withdrawn from the Rome Statute and there is no compulsive process for them to go into the country and start investigating anything," Remulla insisted.
"The ICC should only enter into countries where there is no existing judicial system. They have done that in Somalia, they have done that in Sudan, in countries with no rule of law. Hindi naman tayo ganun (we are not like them). We have an existing justice system that is characterized by our rule of law," he added.
CenterLaw, lawyer for families of some drug war victims, was quick to rebut this claim as "not true."
"Inability is not a question where there is inaction in the first place," it said on Twitter.
It referred to an earlier statement that debunked the claim.
"[A]s clarified by the ICC in Prosecutor v. Katanga, inaction on the part of a state authorizes the ICC to exercise its jurisdiction. Because the Philippines has failed to investigate or prosecute those responsible for the bloody drug war, the ICC may exercise jurisdiction over the Situation in the Philippines," it said.
The case involved former rebel leader Germain Katanga who was eventually convicted as an accessory to the crimes of murder and attacking a civilian population, pillaging, and destruction of enemy property but who was acquitted of the charges of rape, sexual slavery, and using children under the age of 15 to participate actively in hostilities.
The lack of any investigation at the national level made the case admissible to ICC’s jurisdiction even if the Democractic Republic of Congo had a working justice system at the time of his ICC trial.
CenterLaw also pushed back against Remulla’s and the Philippine government’s position that because Manila has withdrawn from the Rome Statute, the ICC no longer has jurisdiction over the country.
"[T]hough the Philippines withdrew from the Rome Statute effective 17 March 2019, the ICC retains jurisdiction over killings already committed," it said, citing the Philippine Supreme Court case of Sen. Pangilinan v. Cayetano where the high court said the withdrawal from the Rome Statute won’t affect the liabilities of individuals charged before the ICC for acts done with the period the country was still a part of the ICC.
"It still has the duty to cooperate with the ICC," CenterLaw said.
Remulla however questioned how this jurisdiction could be exercised.
"What law are they going to use if not our law? What law enforcement agency are they going to use if not our own? Because they have no compulsory process, what are they going to do here?" he said, referring to the ICC’s lack of subpoena powers.
"So it’s an impossible thing they’re asking for," he added.
SEPTEMBER 8 DEADLINE
The Philippines has until Sept. 8 to submit its comment on Khan’s request to resume the ICC probe.
Remulla said the DOJ has given former Justice Secretary and now Solicitor General Menardo Guevarra information and case folders.
"It’s probably up to him that it has to be worded in such a way that is not in compliance. We are not complying to any demand. We are doing this as a matter of comity to inform them that we are doing something on the problems we are supposed to solve on our own," he said.
“We are doing everything as a matter of comity, friendship, respect among nations among unilateral agencies,” he added.