By Ade S. Fajardo
Alan Peter Cayetano, when he was Foreign Relations secretary, was the “principal architect” of the Philippines’ withdrawal from the International Criminal Court (ICC).
The solicitor general minced no words in her comment to Bato dela Rosa’s urgent motion seeking relief from the Supreme Court against his impending arrest as directed by the ICC.
This is the same Cayetano who became Senate president after Dela Rosa came out of the shadows to deliver the 13th vote in his favor.
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Kiko Pangilinan and other minority senators challenged the validity of Duterte’s withdrawal, contending that the president may not unilaterally withdraw from a treaty ratified by the Senate.
The Supreme Court dismissed Pangilinan’s petition for being moot and academic.
It was nonetheless explained that crimes against humanity and other international crimes could still be prosecuted if such crimes were committed when the Philippines was still a member of the ICC.
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According to the solgen, the Supreme Court itself has already acknowledged that more than 20,000 people were killed during the Duterte administration’s anti-drug war “from July 1, 2016 to November 27, 2017, or an average of 39.46 deaths every day.”
A local statute haunts Dela Rosa as well as other co-perpetrators of Duterte’s bloody war on drugs.
The daily toll of 40 deaths could have been investigated and locally prosecuted under Republic Act 9851 — a domestic law that has been in effect since 2009.
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Yet the Philippine government did not investigate much less prosecute those crimes.
They were committed before the Philippines’ withdrawal took effect in early 2019.
On the other hand, the ICC prosecutor has investigated Duterte and the co-perpetrators of the war on drugs.
RA 9851 states that the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime.
Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another state pursuant to the applicable extradition laws and treaties.
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Simply put, Philippine authorities, should they be unable or choose not to prosecute, can surrender the perpetrator to the international court that is already investigating or prosecuting the crime.
The solgen herself says so. The enforcement of an ICC warrant does not require a corresponding warrant of arrest issued by a Philippine court.
The requirement of a probable cause finding by a Philippine judge under the Bill of Rights applies to local prosecutions only and is not available to Dela Rosa who is about to be tried in an international court.
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A local judge issues a warrant of arrest on the basis of the findings and recommendations of the Department of Justice (DOJ).
As mentioned, there has never been such a local investigation by the DOJ or any other prosecutorial agency like the Ombudsman.
A local investigation results in a local court filing. A local court may not review the findings of the ICC prosecutor./WDJ