Commentary: Magdalo’s lawfare against Duterte

CERTAINLY less audacious than occupying expensive hotels, just like what they did during Gloria Arroyo’s time, the Magdalo party-list’s efforts to impeach or indict President Rodrigo Duterte at the International Criminal Court (ICC) has regime change as the end goal. They’ve launched a coup d’état against the Duterte administration through another means: lawfare.

A portmanteau word combining “law” and “warfare,” lawfare has been defined by US Air Force Maj. Gen. Charles Dunlap Jr. as “a strategy of using—or misusing —law as a substitute for traditional military means to achieve an operational objective.”

Magdalo’s Rep. Gary Alejano and his colleagues would like to use the ICC to unseat Duterte, which they failed to do after the members of the House committee on justice unanimously dismissed their impeachment complaint against Duterte for lacking in substance. Alejano threatened to file a complaint at the ICC. Unfazed, Duterte encouraged him “to go ahead.”

As I wrote in my column of April 27, 2017 (“The ploy to destroy Duterte’s external legitimacy”), “getting Duterte indicted at the ICC is the ideal goal of anti-Duterte forces. Like what happened to Kenyan President Uhuru Kenyatta, in order for Duterte to appear in court he would need to leave the Philippines and hand over power to the Vice President, until the trial ends. It would make Leni Robredo President even temporarily.”

I was wrong on the last part.

I’ve found that if ever Duterte were to be served a “summon to appear” at the ICC, he doesn’t need to be in The Hague all throughout the proceedings. The ICC’s Pre-Trial Chamber II issued a “summon to appear” rather than a “warrant of arrest” against Kenyatta because he wasn’t considered to be a “flight risk” and “that nothing…indicates that [he]would evade personal service of the summons or refrain from cooperating if summoned to appear.”

A summon to appear doesn’t entail the detention of the accused. This is different from the fate of Sudanese President Omar al-Bashir who was issued a warrant of arrest. I believe the difference lies in the fact that ICC proceedings on the situation in Darfur was done through the directive of the UN Security Council, which was needed as Sudan isn’t a member of the ICC.

Duterte’s situation is more akin to that of Kenyatta than al-Bashir. Like Kenyatta, Duterte could request for excusal from continuous presence at trial. ICC Trial Chamber V granted Kenyatta’s request “in order to permit [Kenyatta] to discharge his functions of state as the executive President of Kenya.” Kenyatta was only requested to appear physically in certain crucial stages of the trial. The trial chamber argued that requiring Kenyatta, a sitting president, to be present all throughout the proceedings “may well appear as a form of punishment” and thus violate the presumption of innocence the accused enjoys (Prosecutor v. Uhuru Muigai Kenyatta).

If Duterte wants to be ballsier about it, his administration could lobby the Association of Southeast Asian Nation (Asean) to appeal to the UN Security Council (UNSC) to defer ICC proceedings against him. The Article 16 route could be used to, at least, let Duterte finish his term before ICC proceedings against him are initiated.

Article 16 of the Rome Statute gives the UNSC the power to request the ICC to delay investigations or prosecutions for a renewable period of 12 months. The African Union did it for al-Bashir. However, the UNSC did nothing. But the UN Security Council might be prodded to invoke Article 16 of the Rome Statute in the case of Duterte if doing so would help maintain or restore international peace and security.

In November 2011, in a speech before the UN Security Council, Yury Fedotov, executive director of United Nations Office on Drugs and Crime (UNODC), declared that illicit drug trafficking is a major threat to international peace and security (UNODC, November 23, 2011). Meanwhile, during the 33rd Asean Ministerial Meeting in July 2000, foreign ministers of Asean member countries recognized “the threat from drug abuse and drug trafficking on the security and stability of the Asean region.”

With the right messaging, the Philippines war against drugs and narcopolitics could be deemed necessary for the maintenance of international peace and security. ICC interference in the Philippine could weaken the ability of the Duterte administration to dismantle the apparatus of transnational drug syndicates, which made the Philippines a major transshipment point of illegal drugs.

In the guise of pursuing justice, ICC interference could obstruct the campaign of the Duterte administration against illegal drugs and narcopolitics, which are necessary not only for the security of the Philippines but of the Asean region as well. Thus, it’s in the interest of Asean to back the Philippines against any foreign interference that wittingly or unwittingly strengthens the position of the other side of the war on drugs—the transnational drug syndicates.

Magadalo’s lawfare against Duterte is embedded in that larger theater of war. As Alejano et al. move to demolish Duterte’s external legitimacy through their lawfare, who exactly benefits? For sure, it’s not the families, communities and cities wishing to liberate themselves from the terror and violence wrought by shabu.

(Published in The Manila Times, 18 May 2017)

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