Duterte emboldens case for ICC intervention

TikTok’s 90 days in the cooking pot

While the Philippines’ controversial decision to withdraw from the International Criminal Court (ICC) has captured global headlines, the case for outside legal intervention is building as President Rodrigo Duterte moves to neutralize his country’s judiciary.

A House of Representatives justice committee voted this week to endorse articles of impeachment against Supreme Court Chief Justice Maria Lourdes Sereno, the country’s highest magistrate and one of the few independent checks left on Duterte’s strongman government.

Sereno was forced to take indefinite leave earlier this month amid an avalanche of what many saw as politically motivated accusations filed by Duterte’s political allies. The impeachment articles are widely expected to be passed by a plenary of the Lower House, likely when Congress comes back in session in May.

In recent weeks, Duterte and his congressional allies have moved to neutralize the country’s highest court. Since Duterte’s ascent to power, Sereno has been among the few high-level officials who has dared to openly criticize and resist the president’s lethal war on drugs.

It’s a risky position to take. Former justice secretary and incumbent senator Leila DeLima is currently languishing in prison on trumped up drug charges after openly and frequently questioning the legality of the killings in Duterte’s drug war.

Rights groups estimate as many as 12,000 people have been killed in the campaign, a figure the government hotly contests. Sereno has frequently warned that the extrajudicial killings were eroding the rule of law across the country.

It’s a view shared in some quarters of the international community. The ICC, which has jurisdiction to prosecute individuals for cases of crimes against humanity and in cases where national courts are unable or unwilling to prosecute criminals, has said its inquiry into the drug war will continue despite Duterte’s decision to withdraw from the court.

He’s arguably now bidding to create the illusion that the Philippine judiciary is operating freely and independently by using legal means to remove Sereno.

Solicitor General Jose Calida, a known Duterte ally, filed a petition on March 5 asking her colleagues in the Supreme Court to declare Sereno’s 2012 appointment as top judge as unlawful and to remove her from office. The government’s highest prosecutor alleged that the magistrate has abused her public position and violated her obligations as head of the judiciary.

Sereno, an appointee under former president Benigno Aquino III, has served on the Supreme Court since 2010 and is widely respected in legal circles. She has a law degree from the University of Michigan in the United States and served previously as a legal counselor at the World Trade Organization’s Appellate Body Secretariat in Geneva.

She has also previously served as a legal counsel to the government’s Office of the President, Solicitor General and Department of Trade and Industry. Yet Duterte has openly accused her of acting as a proxy for the opposition and as a de facto enemy of his administration.

In reality, the judiciary is increasingly stacked with Duterte’s allied appointees and otherwise deferential justices who have supported various of his controversial executive decisions, including Duterte’s order to bury former dictator Ferdinand Marcos at the Cemetery of National Heroes.

They have also backed his hotly contested decision to impose and maintain martial law across the entire island of Mindanao. There has been no movement in the courts to bring any top level officials to account for the high number of killings in the drug war, motivating a local lawyer and lawmaker to appeal to the ICC.

Both the Solicitor General and Duterte’s legislative allies have pointed to alleged irregularities in Sereno’s Statement of Assets, Liabilities, and Net Worth (SALN) during her 19-year tenure as a law professor at the University of the Philippines, prior to her appointment to the Supreme Court, as grounds for her impeachment.

They have also tried to portray Sereno as psychologically volatile and otherwise unfit to serve as the judiciary’s head. In a highly controversial and potentially illegal move, Duterte’s congressional supporters revealed the details of a psychological test Sereno took when applying for her position at the Supreme Court.

They summoned former court clerics and psychologists to testify against her fitness to serve in public office, with some claiming that she “failed” the psychological test since she allegedly exhibited neurotic tendencies such as “grandiosity, sense of unlimited power, sense of entitlement, exploitative to take advantage of others, and lack of empathy and sensitiveness to other members of the community.”

The blatant attempt at character assassination and clear violation of her privacy has sparked public outrage. The Psychological Association of the Philippines (PAP), composed of the country’s mental health professionals, declared in an official statement that claims “that the Chief Justice ‘failed’ the psychological evaluation are misleading, as no one ‘passes’ or ‘fails’ a psychological assessment.”

The PAP said that even if, “psychological test results become public documents, this does not grant permission for anybody to use it for any purpose other than its original intent,” which was an evaluation of her fitness prior to her court appointment. “To use a psychological assessment conducted in 2012 (which was for the purpose of Chief Justice Sereno’s appointment) for the current legislative proceedings is a misuse of those results,” the association said.

Ironically, perhaps, United Nations’ High Commissioner for Human Rights Zeid Ra’ad al-Hussein told a news conference earlier this month that Duterte’s frequent slurs against the UN suggest he’s the one who needs to see a psychiatrist.

“These attacks cannot go unanswered, the U.N. Human Rights Council must take a position,” Zeid said after Duterte’s government sought to get a UN investigator, a former Philippine lawmaker and four former Catholic priests declared as “terrorists.” “He needs to submit himself to some sort of psychiatric examination,” Zeid said.

The Philippine business community has also come to the chief justice’s defense. The influential Makati Business Club, an association of comprised of the country’s leading entrepreneurs, beseeched the government to give “the chief justice the chance to defend herself within our constitutionally-defined process.”

Duterte’s allies in Congress have so far refused to grant Sereno the chance to present her case during legislative hearings.

The business community is particularly concerned with the building climate of impunity, exemplified in the mass unresolved extrajudicial killings in the drug war and shrinking space for political dissent, both of which have hit the country’s international image and raise the risk of political instability.

The influential business group reminded the government that, it’s “absolutely essential for businesses that laws and contracts will be upheld for them to invest and create more jobs which is what will ultimately reduce poverty in a sustainable way.”

Sereno still hopes to forestall her impeachment at the Philippine Senate, where Duterte enjoys a slimmer majority due to a significant number of democratic independents and opposition members. The Senate will act as judge in any impeachment trial where the Lower House forms a prosecution team.

Sidelining Sereno would pave the way for Duterte’s complete domination of the country’s judiciary, eliminating yet another check and balance on his rule.

It will also likely amplify calls for the ICC to pursue its inquiry into whether Duterte should be held to account for crimes outside of the Philippine’s increasingly politicized judicial system.

Asia Times Financial is now live. Linking accurate news, insightful analysis and local knowledge with the ATF China Bond 50 Index, the world's first benchmark cross sector Chinese Bond Indices. Read ATF now.