Better late than never

"The more Duterte closes the door to any ICC investigation, the more the tribunal becomes convinced that no justice can be obtained in this country."


If you think our own courts take their own sweet time in deciding on criminal as well as civil cases brought before them—those charged in connection with the Ampatuan Massacre that took place in 2009, for instance, were convicted only in 2019, or a full decade after the fact—it should be borne in mind that international courts seem to fare no better in disposing of their dockets in the shortest time possible.

Before the International Criminal Court (ICC) is a  complaint against Rodrigo Duterte for alleged crimes against humanity in the course of his war on drugs that began soon after he took office in July 2016 and continues up to the present. The complaint was filed by relatives of the drug war victims, assisted by the National Union of Peoples’ Lawyers and the sectoral group Rise Up after thousands of suspected drug dealers ended up dead after the police claimed they fought back during legitimate anti-drug operations.

ICC Prosecutor Fatou Bensouda said at the outset that she would initiate a preliminary examination of the complaint before launching a full-blown investigation.  

In December 2019, the ICC vowed to continue assessing the complaints against Duterte even though the Philippines had withdrawn from the Rome Statute which established the international tribunal.  The ICC said that it still had jurisdiction over the case as it had been filed before the withdrawal.

In December 2020, the ICC Prosecutor said she had “determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between 1 July 2016 and 16 March 2019 in the context of the Government of the Philippines ‘war on drugs’ campaign.”

The latest development here is that the ICC has formally requested judicial authorization to proceed with an investigation of the case filed against Duterte.

This comes after the relatives of the drug war victims called for such an in-depth investigation as this “would definitely serve the interest of justice. In fact, it will defeat the interest of justice if the ICC will not conduct or initiate an investigation. The initiation of an independent investigation presents a unique opportunity to freely and fairly take testimony or a statement from the families of the victims and the witnesses themselves as well as to examine and collect evidence in its totality and context.”

So can we now expect the case to move forward at a faster pace?

Well, we really don’t know, considering that, as pointed out by the relatives of the drug war victims, the government has not taken any “genuine and effective national investigation or prosecution of crimes committed.”  

While the Department of Justice has agreed to do a review of the deaths resulting from the war on drugs, and the Philippine National Police has committed to cooperate in the review by providing documents of 61 cases, Duterte has thrown a spanner in the works by claiming that documents related to the war on drugs have national security implications and therefore should not be made public.

Duterte may not realize this, but the more he closes the door to any ICC investigation, the more the tribunal becomes convinced that no justice can be obtained in this country and therefore it is well within its mandate to pursue the case to its conclusion.

Never too late

While we’re at this, you really can’t blame the business sector for its utter impatience in getting  our lawmakers to approve pending bills seemingly languishing in the archives for as long as we can remember.

After all, it’s been 34 years since the 1987 Constitution clearly  provided: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

Yes, it has taken that long for Congress to act on 19—that’s correct, NINETEEN—bills calling for the passage of the Freedom of Information (FOI) Act that would have been an important first step in fighting graft and corruption in this country.  

That’s why business groups have issued a joint position paper addressed to Congress urging the passage of the Freedom of Information Act. “This proposed legislation has consistently been identified as a legislative priority by the Philippine Business Groups-Joint Foreign Chambers (PBG-JFC). We acknowledge the laudable aim of the bills of promoting and strengthening the people’s right to information by allowing citizens to request from the government, information involving public interest or government transactions at any given time and subject to limitations.”

“For complete transparency, we acknowledge the need to include documents submitted by private entities who enter into dealings, contracts or transactions of whatever nature with the government or a government agency by which there is utilization of public funds. However, only the documents submitted by private entities in relation to government-funded projects or government transactions should be covered in order to maintain the privacy of, and to protect, proprietary information relating to patents, formulation, packaging of products, intellectual property, production, testing methods, and the like, the disclosure of which can adversely affect or prejudice commercial or business interests.”

While the business groups said that they “fully commit to advocate for an FOI Act that will uphold integrity, accountability, and transparency of the government”, they urged that the approved bill should be “protective of the rights of commercial undertakings or businesses as we believe this can pave the way for favorable economic development in the country.”

It’s a reasonable request from the business sector that our lawmakers really ought to consider, if and when they do decide to resurrect the 19 proposed FOI bills that already appear dead in the water. 

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Topics: Ernesto Hilario , International Criminal Court , ICC Prosecutor Fatou Bensouda , President Rodrigo Duterte , crimes against humanity , war on drugs
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