Fact-checking website Vera Files says that President Rodrigo Duterte cannot invoke presidential immunity against a case filed against him with the International Criminal Court (ICC).
The fact-checking article was first written by Vera Files in September 2016, but they are re-publishing it after reports surfaced about self-confessed hitman and Davao Death Squad member Edgar Matobato said that he will file a case against Duterte with the ICC.
Vera Files pointed out how Duterte has invoked immunity during speeches when he threatened to kill criminals. They cited the President’s talk to the soldiers on August 5, 2016 as an example, when he said:
“Pag ayaw magpa-areglo ng kaso, patayin. Parang lahat na. Salvage dito, salvage doon. Because when I became mayor, I said, “If you’re a criminal, if you’re a drug addict, if you are a bullshit here – get out of my city because I will kill you.””
“Mag-order ako ng patay. You cannot arrest me. May immunity ako.”
The first part can be seen in this video, from mark 16:57 to 17:03, while the second statement can be seen from mark 17:43 to 17:54.
Vera Files also wrote how there is actually no provision in the 1987 Constitution granting immunity to the sitting president. It was only a provision from the 1973 Constitution that was not carried into the current one, particularly in Article VII, Section 7, which stated, “The President shall be immune from suit during his tenure.”
However, the logic behind this old provision said that “it was to assure the exercise of presidential duties and functions is free from any hindrance or distraction.”
Having a case filed against him with the ICC, though, would strip him of his immunity, as per human rights lawyer Harry Roque, who said that executive immunity “is not an effective shield against the ICC.”
The ICC was created by the Rome Statute, which covers everyone, including the government or Head of State, as per Article 27, which states:
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”
According to Roque, the ICC only intervenes when the state, which has primary jurisdiction, fails to prosecute an international crime. The ICC is limited only to prosecuting the most serious crimes, including crimes against humanity, as mandated by Article 5 of the Rome Statute. Crimes against humanity is defined by Article 7 as “acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”
Roque said that such crimes can be committed “even in times of peace, without the existence of an armed conflict.”
He also said that the Philippines also passed a similar law, RA 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, as its obligation for being party to the Rome Statute of the ICC. The law was enacted in 2009.
The Philippines became the 117th State to join the Rome Statute in 2011.
Vera Files also gave examples of leaders indicted by the ICC, such as Sudan president Omar Hassan Ahmad Al Bashir and Kenyan president Uhuru Muigai Kenyatta.
Roque added, “Even without actual or direct participation, the President can be indicted for crimes under the principle of Command Responsibility so long as he knew that such crime was being committed, and he failed to take all necessary and reasonable measures within his power to stop such acts. The ICC does not need to wait for news about the massacre of an entire town or barangay before it investigates.”
If indicted, the ICC can issue an international warrant of arrest against the leader. The warrant will then be enforced by the member-states, although some members refused to heed the warrant issued against the Sudan president. As a result, he could only travel to the African states that refused to enforce the warrant.
In his Philippine Star column on September 6, 2015, Federico D. Pascual Jr. said that the immunity from suit was indeed only included in the 1973 Constitution during the Marcos admin. Section 15 of Article VII said:
“The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.”
However, Section 15 was not copied to the current 1987 Constitution.
In his next column on September 8, 2015, Pascual wrote about how human rights lawyer Rene Saguisag agreed with his opinion.
“Yup, immunity from suit of the Prez is a superstition. A Jurassic ‘Marcosian relic,’ as you put it in your column today, 9/6, Sunday,” Saguisag wrote in his email to the columnist.
“I asked my studes yesterday, Saturday, in San Beda Mendiola to look for the basis of the claim in the Consti. None, many of them correctly answered,” Saguisag added.
Duterte says he is ready to deal with ICC
Duterte remarked on March 19 that he is not scared of being impeached or tried before the ICC since he is ready for anything.
“But I will not be intimidated by the ICC, impeachment,” the President told the media before his flight to Myanmar.
“They can do their worst, I can do better in my performance as a worker in government, period. This is a democracy,” he added.
Duterte said that if it is in his “destiny” to go, then nobody could stop it.
“I will deliver on my promises, even if it would cost me my life, my honor, and the presidency. I can lose them all but I will comply with my promise. The drive against corruption, the drive against criminality and drugs will resume and it will continue,” he added.
Duterte repeated his reminder to drug traffickers – to stop what they are doing.
“Suppression includes all. Drop the shabu if you want to be alive. If you do not want trouble with government, stop trafficking. It’s as simple as that. I will not for a moment be out of focus on that,” he said.
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