The President does not have real immunity from criminal prosecution for genocide, war crimes, and other crimes against humanity penalized under Republic Act 9851
First of 2 parts
The Constitution, laws, and jurisprudence empower Ombudsman Conchita Carpio Morales to investigate and prosecute President Rodrigo Duterte and the most guilty parties for the mass murder of civilians being perpetrated by the Philippine National Police on a grand scale.
The Ombudsman can investigate and prosecute them for “Other Crimes Against Humanity” in the form of “willful killing,” pursuant to Section 6[a] of Republic Act 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
Under Section 7, RA 9851 penalizes this offense with reclusion perpetua or 40 years imprisonment, and P500,000 to P1 million fine.
The Philippine state, through the independent Office of the Ombudsman, is legally obligated to investigate and prosecute Duterte under RA 9851, aided by the Rome Statute of the International Criminal Court, for allegedly inciting and condoning the mass murder of civilians. This is pursuant to the letter and spirit of RA 9851 and the Rome Statute (July 17, 1998).
The President does not have real immunity from criminal prosecution for genocide, war crimes, and other crimes against humanity penalized under RA 9851. This fact becomes even more glaring when the Rome Statute came into force in the Philippines on November 1, 2011.
Jus cogens
Together with RA 9851 and the Rome Statute, the Pinochet decision of the UK House of Lords as well as the Nuremberg Charter and judgment serve as authority for the position that Duterte can be investigated, prosecuted, and tried before Philippine courts even as a sitting president for core international crimes. Jus cogens (compelling and binding law), or peremptory norms of customary international law, hold heads of state liable for criminal prosecution under the concept of universal jurisdiction.
In Regina v Bartle (UK House of Lords, March 24, 1999), Lord Browne-Wilkinson says:
The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are “common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution” (citation omitted)
Lord Browne-Wilkinson further cites from Sir Arthur Watts’ The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers:
“The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. Problems in this area… have not affected the general acceptance of the principle of individual responsibility for international criminal conduct.”
“It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes.”
Constitutional mandate
Section 12, Article XI (Accountability of Public Officers) of the 1987 Constitution recognizes the Ombudsman and her deputies “as protectors of the people”:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government….
Either “on its own, or on complaint by any person,” the Ombudsman – as protector of the people – has been constitutionally empowered to investigate the President and the most guilty parties for violations of RA 9851, particularly for the offense of “Other Crimes Against Humanity” in the form of “willful killing” (Section 6[a]). This is by virtue of Section 13 of the same article XI:
The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
Section 15(1) of The Ombudsman Act of 1989 (RA 6770) grants the Ombudsman investigatory and prosecutory powers to investigate and prosecute “any public officer or employee,” including the President. It reads:
Section 15. Powers, Functions and Duties.
— The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; (my emphasis)
In the context of the ongoing mass murder of civilians by the police, the Ombudsman can direct “upon complaint or at its own instance, any public official or employee of the Government…to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.” (Section 13, Article XI, Constitution)
By virtue of these constitutionally-mandated powers and authority, the Ombudsman can direct the President, the Department of Justice, the National Bureau of Investigation, and other government officials to investigate and prosecute those responsible for the thousands of civilian deaths. She can also direct those officials to institute measures to stop and prevent their recurrence.
Section 13(3), Article XII, Constitution, also says:
Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
Supreme Court decisions
Jurisprudence affirms the Ombudsman’s authority as well as “plenary and unqualified” investigatory and prosecutory powers. In Ombudsman v Enoc (January 25, 2002), the Supreme Court, citing Uy v Sandiganbayan (March 20, 2001), says:
Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee.
In Castro v Deloria (January 27, 2009), the Supreme Court revisits and further explains Uy:
A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law. Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. (citation omitted)
The case or cases involving violations of RA 9851 fall under the original and exclusive jurisdiction of regional trial courts specially designated by the Supreme Court to hear and try those cases (Section 18, RA 9851).
Filing of complaints
Any person can initiate and file criminal complaints against Duterte – or any other Philippine president for that matter – for the offense of “Other Crimes Against Humanity” in the form of “willful killing” under Section 6(a) of RA 9851.
The Commission on Human Rights, the Department of Justice, the Philippine National Police, “or other concerned law enforcement agencies shall designate prosecutors or investigators” for violations of RA 9851 (Section 18). It further provides:
The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of this Act, receive effective training in human rights, International Humanitarian Law and International Criminal Law./Rappler.com/ Perfecto Caparas
(Next: Investigating Duterte: Pinochet and Nuremberg as precedents)
The author is a lifetime member of the Integrated Bar of the Philippines. He holds a Master of Laws (LLM) degree in American Law for Foreign Lawyers and an LLM in Human Rights (Honors). The views expressed here are exclusively his. He does not represent any group or institution.
