Second of five parts
NAGA CITY (MindaNews / 29 April) – Bene Ad Judicium Teneo
That is, “properly held for trial” and, if we may add, for judgment and justice. Note no longer just bene detentus (“properly detained”) but the rest of the whole process of rendering procedural and substantive justice for both the perpetrator/s and the victims. What follows are actually expressions of the common sense of this from several non-lawyer family members in answer to my question “Does the cause of or need for justice and accountability for the thousands of victims of the Duterte drug war justify or supersede any irregularity, illegality or invalidity in his arrest and surrender to the ICC? Do the ends justify the means? What if the legal is not moral? Or the moral is not legal?” Here are the answers, representing three generations:
1 — “Do the ends of justice and accountability justify the means of the questioned tactics undertaken to arrest him? Is this Machiavellian?… Any irregularity in the arrest, even if it was facilitated by a political rival for vested interests does not detract from the more important concern of bringing him to face the charges of crimes against humanity. Justice and accountability are far weightier concerns than the technicality of how he was arrested. Besides, there was a warrant even if it was served late, and he will be given a chance to defend himself, unlike his thousands of victims who were not given that same opportunity… Does this not set a precedent for similar arrests in the future for others by those in power to eliminate political rivals? Yes, this could be a precedent but only if a person were also charged with similar heinous crimes…. What is legal is not necessarily moral, and what is moral is not necessarily legal… Take the case of Jean Valjean stealing a loaf of bread for his starving family in Les Miserables. Although stealing is wrong and should be punished, the ones stolen from could spare the bread and give even more. Valjean was struggling for his family’s survival, victims of a system, and was not a criminal per se but became kind and generous later. Duterte is nothing like that, he believed in killing with impunity from his position of power.”
2 – “If it’s somehow determined to be illegal or procedurally invalid, I don’t believe that he should be released. I don’t know about the legal aspects, but I would think that if there’s evidence against him, then there can be a ‘redo’ of the arrest following proper procedure, etc., and that he should still be tried and held accountable. What little I know of the legal aspects from movies, etc., is that people really can get off on technicalities, but I think every legal avenue should be explored, especially by international bodies, as nothing would be resolved by trying him in the Philippines (wala nang hope if he’s brought back here). Morally, yeah, the cause or need for justice and accountability supersedes any minor procedural invalidities (for me may range yang illegality — if it’s just a matter of procedure, then ayusin retroactively). Pero dangerous yung sweeping statement about justice superseding illegality kasi baka kahit ano ay pwedeng i-justify diyan. In this specific case, the crimes against humanity outweigh what would likely be very minor irregularities, not major illegalities big enough to invalidate the arrest.”
3 – “Morally, I don’t think he should be sent back if the arrest is illegal. He’s already at the ICC, there’s already a hearing scheduled for September, and he himself has said that he’s willing to face the court and answer for his crimes. The thousands killed in his drug war didn’t get anything close to the due process he gets in the ICC. What’s one slightly illegal arrest when the man in question wa s arrested to answer for thousands of extra-judicial killings? The argument that the ICC’s actions are unnecessary because he can just be tried in a Philippine court doesn’t work anymore, we’ve tried that for years, but to no avail. Nitpicking the legality of an arrest in which authorities had to bend over backwards to make it as comfortable for him as possible is only going to slow this operation down when we need to be on double-time. He’s already 80 years old and can die any minute. This will only serve as yet another example of how true justice is only for the bourgeoisie [referring to the rich and powerful]. Walang laban si Kian, there’s no saving him from the lack of due process and the flawed procedures of the PNP, but with Duterte, every little detail has to be nitpicked. The justice system should be used to prosecute the powerful and influential people at the top of our tatsulok [referring to our social pyramid], not to protect them. Questioning whether or not to release him if the arrest is determined to be illegal is the same as questioning whether we prioritize the comfort of a power-hungry murderer or justice for the thousands killed from 2011 to 2019. I don’t know much about how this is meant to be handled legally, but I would rather prioritize the latter.”
Common sense or no so common good sense of balance and justice? Those non-lawyer three-generation family member answers make me proud. Their gut feeling views are similar to those of another non-lawyer, National University of the Philippines philosophy and humanities professor Jose Mario de Vega, who wrote these lines for a proper or proportionate balancing of interests in the Duterte case under an opinion piece titled “Light and justice vs. darkness and tyranny” (translated as Liwanag at katarungan laban sa kadiliman at paniniil):
… It should side with the oppressed, not the oppressor. For it to have moral legitimacy and ethical ascendancy, it must side with the victims and not with rights violators…. The struggle in the Philippines now and in the world is not whether one is pro-Duterte or pro-Marcos, pro-Trump or anti-Trump. Rather, it is about whether one is for justice, freedom, and the dignity of humanity.
As for “a ‘redo’ of the arrest following proper procedure,” Justice Azcuna noted that the last March 14 initial hearing of the Duterte case before the ICC Pre-Trial Chamber (PTC) 1 “was an attempt to cure the deficiency of the Article 59 procedure because the three judges in the hearing simply did what the local court would have done.” And this was, under RS Art. 59(2), to “determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person’s rights have been respected.” In fact, the opportunity not given by the relevant Philippine authorities to Duterte to exercise “the right to apply… for interim release pending surrender” under Art. 59(3) and (4) will also be “redone” before the PTC in the coming days.
Given what has transpired as regards RP cooperation with its arrest and surrender of Duterte to the ICC, and its likely proceeding with his trial, should the same modus or scenario apply to his presumptive co-perpetrators like incumbent Senator Bato dela Rosa? Likely no longer if the ICC and more so the SC rule that the RS Art. 59 on “Arrest proceedings in the custodial State” was violated in Duterte’s case, and that this should no longer happen in any further RP executions of any subsequent expected ICC WOAs for that same Duterte soon to be “et al.” case. It must be noted that in the WOA (warrant of arrest) for Duterte, the PTC found that he, “even though no longer the President of the Philippines, appears to wield considerable power. Mindful of the resultant risk of interference with the investigations and the security of witnesses and victims…” This may not be the case with other lesser co-perpetrators. But more further below on the applicability of RS procedural safeguards for persons arrested pursuant to an ICC WOA.
(SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, serving in the Philippine judiciary from 2010 to 2022. He has an A.B. History cum laude from the University of the Philippines (UP) in Diliman in 1975, a Bachelor of Laws from the University of Nueva Caceres (UNC) in Naga City in 1982, and a Master of Laws from the University of Melbourne in 2000. He is a long-time human rights and international humanitarian lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books. Among his recent books are a trilogy on his court work, namely Justice of the Peace: The Work of a First-Level Court Judge in the Rinconada District of Camarines Sur (2015); Drug Cases: A Naga Court’s Practice and Reform Agenda (2022); and Judicial Activist: The Work of a Judge in the RTC of Naga City (2023), all published by the law book publisher Central Books in Quezon City.)