Magadalo’s Lawfare Against Duterte : Embedded in a Larger Theater of War

The Magdalo party-list launched a coup d’état against the Duterte administration through what they call “lawfare”. A combination of the words “law”and “warfare”that has been define by US Air Force Maj. Gen. Charles Dunlap Jr. to be “a strategy of using—or misusing —law as a substitute for traditional military means to achieve an operational objective.”


The party-list represented by Gary Alejano would like to use the International Criminal Court (ICC) to try to push Duterte out of position. Only that their intention failed when the House of committee on justice unanimously ended the impeachment complaint for it lacked substance.

On Sass Rogando Sasot’s column on April 27, 2017 it was noted, “The ploy to destroy Duterte’s external legitimacy”, “getting Duterte indicted at the ICC is the ideal goal of anti-Duterte forces. Like what happened to Kenyan President Uhuru Kenyatta, in order for Duterte to appear in court he would need to leave the Philippines and hand over power to the Vice President, until the trial ends. It would make Leni Robredo President even temporarily.”

She admits she was wrong on the last part.

The columnist grasped that “if ever Duterte were to be served a “summon to appear” at the ICC, he doesn’t need to be in The Hague all throughout the proceedings. The ICC’s Pre-Trial Chamber II issued a “summon to appear” rather than a “warrant of arrest” against Kenyatta because he wasn’t considered to be a “flight risk” and “that nothing…indicates that he would evade personal service of the summons or refrain from cooperating if summoned to appear.”

On Sasot’s column on “Magadalo’s lawfare against Duterte”, she supposed that a summon to appear doesn’t entail the detention of the accused. This is different from the fate of Sudanese President Omar al-Bashir who was issued a warrant of arrest. “

“I believe the difference lies in the fact that ICC proceedings on the situation in Darfur was done through the directive of the UN Security Council, which was needed as Sudan isn’t a member of the ICC”, said the columnist.

Duterte’s situation is more akin to that of Kenyatta than al-Bashir. Like Kenyatta, Duterte could request for excusal from continuous presence at trial. ICC Trial Chamber V granted Kenyatta’s request “in order to permit [Kenyatta] to discharge his functions of state as the executive President of Kenya.” Kenyatta was only requested to appear physically in certain crucial stages of the trial. The trial chamber argued that requiring Kenyatta, a sitting president, to be present all throughout the proceedings “may well appear as a form of punishment” and thus violate the presumption of innocence the accused enjoys (Prosecutor v. Uhuru Muigai Kenyatta).

If Duterte wants to be ballsier about it, his administration could lobby the Association of Southeast Asian Nation (Asean) to appeal to the UN Security Council (UNSC) to defer ICC proceedings against him. The Article 16 route could be used to, at least, let Duterte finish his term before ICC proceedings against him are initiated.

Article 16 of the Rome Statute gives the UNSC the power to request the ICC to delay investigations or prosecutions for a renewable period of 12 months. The African Union did it for al-Bashir. However, the UNSC did nothing. But the UN Security Council might be prodded to invoke Article 16 of the Rome Statute in the case of Duterte if doing so would help maintain or restore international peace and security.

Yury Fedotov, executive director of United Nations Office on Drugs and Crime (UNODC), declared in a speech before the UN Security Council that illicit drug trafficking is a major threat to international peace and security. And during the 33rd Asean Ministerial Meeting in July 2000, foreign ministers of Asean member countries recognized “the threat from drug abuse and drug trafficking on the security and stability of the Asean region”.

When the intention is clear, Duterte’s war on drugs could be a great contribution for the maintenance of international peace and security. The Philippines is infested with illegal drugs transactions and the ICC intrusion could weaken the Duterte administration to rip into pieces the transnational drug syndicates.

The interest of Asean should support the campaign of the Philippine President because it is necessary not only for the Philippines but for other Asean region as well.

Magadalo’s lawfare against Duterte is embedded in that larger theater of war. As Alejano et al. move to demolish Duterte’s external legitimacy through their lawfare, who exactly benefits? For sure, it’s not the families, communities and cities wishing to liberate themselves from the terror and violence created by shabu.

Sasot views  that IF the “lawfare” of the Magadalo is successful, the ones to be benefited from the success will not be families, communities and cities wishing to liberate themselves from the terror and violence wrought by shabu. Magadalo’s are up for a bigger stage for a larger theater of war.

Source: Manila Times