Cornered, Dutertes turned to fake TRO to try and stop plane to ICC

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MANILA, Philippines – A frantic Honeylet Avanceña, the partner of former president Rodrigo Duterte, forced herself into the gates of the Villamor Air Base on Tuesday afternoon, March 11, but after getting through, she was met by a line of riot police. She yelled at them, “Anak mo, nanay mo, ganituhin? Payag kayo? (If your child, your mother were treated this way, would you allow it?)

Avanceña was actually allowed into the Air Base, but she wanted another crucial person to come in, a public notary to take Duterte’s undertaking that was needed to be attached to a hail mary petition to the Supreme Court.

Duterte was arrested that morning on the warrant of the International Criminal Court, which was implemented through a cooperation with the Interpol.

The petition, 100 pages long, asked the Supreme Court to take jurisdiction of Duterte and urgently issue a temporary restraining order (TRO) that, if granted, would ideally have an effect of stopping from taking off the plane that would take Duterte to The Hague in the Netherlands.

They were running against the clock — court dockets usually close at 4:30 pm. The petition was filed during the last three minutes, at 4:27 pm.

The Supreme Court worked overtime that day. Justices conducted a special raffle to get the boll rolling. Chief Justice Alexander Gesmundo instructed the special raffle “given the significance of this case,” said Court spokesperson Camille Ting in a statement they posted 6:15 pm that Tuesday.

The fake TRO

The announcement was followed by a slew of posts claiming that the TRO had been issued. Some tabloids picked it up. Israelito Torreon and Raul Lambino, lawyers assisting Duterte, then began making such claims.

“We received news kanina na na-issue ‘yung TRO kaya (earlier that the TRO has been issued so) we went to the Supreme Court to verify,” Torreon told SMNI, the media arm of the religious group Kingdom of Jesus Christ of the detained alleged sexual trafficker Apollo Quiboloy.

Torreon and Lambino rushed to the Supreme Court at nighttime, claiming they were there to get a hard copy of the TRO. By this time, the fake news had been given legs.

Joined by actor Philip Salvador, the three could not get past the guards of the Court because the office was already closed. They were asked about their basis for the information and if they’d seen any soft copy. “That we are trying to confirm, e ang daming reports e (there are so many reports),” Torreon told ABS-CBN News.

But this was plain fake news. At that point in time, there was no TRO.

Inside Villamor Air Base, the operations commander Police Major General Nicolas Torre III was running out of patience. Torre would later say they had given all the leeways to Duterte, even letting him take naps.

Videos that have since come out showed that deeper into the night, elite cops had already filled the room to get Duterte on the plane.

Duterte wanted his daughter, Vice President Sara Duterte, to enter the Air Base, but she was denied entry. Torre said that was already a delaying tactic and that the negotiations had gone on for far too long.

The race to the plane, and one more emailed petition

Then Torre made the bold move. Former executive secretary Salvador Medialdea, who was standing between him and Duterte, raised his voice to tell Torre to stop touching him. In an equally loud voice, Torre recited the Miranda Rights. He was arresting Medialdea for obstruction of justice under the legal principle of a warrantless arrest by virtue of en flagrante delicto or caught in the act. Torre handcuffed Medialdea.

“Nung hinila ko na siya palabas, palayo na nakaposas, nakita ni PRRD na seryoso ako. Hindi ako papatalo. (When I pulled him to go out, and he was handcuffed, Duterte could’ve seen that I was serious. I was not backing down.) We do believe that the majesty of the law has to be followed,” said Torre.

There was a delay in the plane takeoff because the passengers changed, which meant they had to edit the manifest. It also took time for the plane to take off.

Torre said that even aboard the plane, Medialdea kept invoking the fake TRO.

“Sa eroplano pa lang, ‘yun na ‘yung sinasabi ni Medialdea, na hindi dapat lumipad ang eroplano,” said Torre.

“Sakto, malapit na talagang lumipad, dun kumalat ‘yung balita na may TRO,” said Justice Undersecretary Nicholas Ty, who was also at the Air Base.

In reality, when Duterte was aboard the plane, the lawyers were still scrambling to file another supplementary petition to get that TRO.

They attached a medical certificate recommending that Duterte must be admitted to a hospital soon. They attached photos of the chartered aircraft, claiming that this an constituted extraordinary rendition or the practice of transporting a foreign suspect to be interrogated in a country with inhumane regulations. They emailed that petition by 11:17 pm, pleading that the plane be stopped from taking off.

But it had taken off at 11:03 pm Manila time.

When President Ferdinand Marcos Jr. addressed the nation later on, he made sure to say that the plane “has exited Philippine airspace.” The jurisdiction over Duterte had blurred, and any possible TRO to come from the Supreme Court would be a nightmare to enforce.

Justices of the Supreme Court held an en banc session virtually, as some of them were overseas, and decided that there was no “clear and unmistakable right for the immediate issuance of a TRO.”

Out of reach

The TRO was denied on March 12, or the next day Wednesday, according to the resolution. Three of Duterte’s children — Paolo, Sebastian, and Veronica — had all filed their own petitions for habeas corpus. In ordinary situations, a granted privilege of habeas corpus would compel authorities to, quite literally, return the body. It is an extraordinary writ resorted to by detained or disappeared activists. During Duterte’s time, many activists filed this same writ.

Is there any legal scenario by which the Supreme Court could compel the ICC to return Duterte to the Philippines?

We can take some hints, said Ted Te, a criminal law expert and former spokesperson of the Supreme Court. First, the Court made a special raffle urgently to consider their options and then denied the TRO
— not because it’s moot but because they found no clear basis to issue one.

“By doing that, they were aware of the consequences, that having now a subject of the petition out of the country effectively out of the reach of the resolutions of the court, I am pretty sure that they are aware with the things they can and cannot do,” said Te during a forum on Friday, March 14, organized by the University of the Philippines College of Law.

Duterte — 79 years old and once the powerful Davao mayor and then Philippine president — for the time being will be detained in cold The Hague. His confirmation of charges hearing is not until September 23. – Rappler.com