Legal tangles in former Filipino president’s arrest

Former president of the Philippines Rodrigo Duterte has been arrested in Manila on Tuesday, and preparations are underway to fly him to The Hague, where the International Criminal Court (ICC) is, to face trial for extra-judicial killings of thousands of people accused of being drug-peddlers and drug-users, during his term in office between 2016 and 2022.

Duterte’s lawyers had filed an appeal before the country’s Supreme Court to stop the arrest. Duterte’s lawyesr are arguing that the ICC had no jurisdiction over the Philippines because the Philippines had withdrawn from the Treaty of Rome which had set up the court, in 2018.

The withdrawal came when the ICC started investigating the allegations against Duterte. The ICC’s assertion is that it has jurisdiction over the Philippines for the period when it was a member of the treaty. The court was set up in 2002. Many of the big countries like the United States, China are not members of the ICC and therefore do not come under the purview of its jurisdiction. The Supreme Court is to set a date for hearing even as Duterte is under custody.

Duterte has been quite defiant about his ruthless campaign against the drug menace in the country. He was pursuing a zero tolerance policy even when he was a prosecutor and mayor of Manila, and continued to do so during his presidency.

He asserted that he would not mind ‘rotting’ in prison if he can end the drug addiction in the Philippines. Most Filipinos did agree with his campaign against drugs, the peddlers and the addicts. But the use of extreme violence and violation of judicial norms to kill the alleged offenders alienated the people, and even antagonised them. But Duterte was unapologetic.

The Philippines has a tradition of feisty defenders of human rights during its post-World War II history. There was fierce resistance to Ferdinand Marcos, the dictator who ruled the Philippines for 20 years, and who forced his political opponents into prison or into exile. It was in 1986 that Marcos was forced out of power and into exile after Benigno Aquino, the opposition leader was assassinated when he returned to the country in 1983.

Ironically, it is Marcos’ son, Ferdinand Marcos Jr who is the president of the country, and who has won the presidential election in 2022. Another president, film star-turned-politician, Joseph Estrada, was pushed out of the presidency and into prison on charges of corruption by then Vice President Gloria Macapagal Arroyo in 2001. So, controversies and imprisonment have not been a stranger to the office of the Philippine’s presidents.

Duterte’s case is both important and controversial. One of the tenets of a democracy is that the rule of law prevails, and that criminals should be punished according to law. Outrage and revenge have no place in dealing with crime and criminals.

Duterte had ignored this basic requirement of the judicial process. He seemed to have believed that his outrage and his violent reaction to drugs was justified because it was for a right cause. One of the problems of this attitude is that criminals do not get a fair deal which is their rightful due in a legal system in a democracy.

And Duterte had also ignored the caution that was required that no innocent person should be punished. It showed an authoritarian streak in Duterte, and it also revealed a streak of cruelty in his personality that is associated with authoritarian rulers. This does not however close the moot point whether Duterte should be tried for his “crimes against humanity” in a court in the Philippines or in the ICC.

The Philippines has not yet been re-admitted to the ICC. The ICC it would seem wants to assert its authority beyond its reach. It is an issue that needs to be debated.