[Point of Law] Duterte will have his day in court. How about the fallen drug war victims?

The arrest of former President Rodrigo Duterte to face trial before the International Criminal Court (ICC) has sparked legal and ethical debates about due process, accountability, and the rule of law.

At the center of the discussion is a fundamental irony: during his tenure as mayor of Davao City and later as president of the Philippines, many of our countrymen were killed due to his war on drugs — several of them small-time suspects, users, and even children — without investigation, without trial, and without due process of law guaranteed by the Constitution.

Now, the former president cries foul that his own due process rights were violated, specifically his right under Article 59(3) of the Rome Statute to seek relief from local courts before being turned over to the ICC.

Legal experts are divided on the issue. Some argue that the former president should have been afforded the procedural protections provided under international law. Others counter that he had no such right because he withdrew the Philippines from the ICC when he was president. Some legal scholars invoke the principle of male captus bene detentus (wrongly captured, properly detained), asserting that any irregularities in his arrest do not affect the ICC’s jurisdiction.

Others cite the Philippine International Humanitarian Law (RA 9851), suggesting that local authorities had the discretion to turn him over to the ICC given that the court had already taken jurisdiction over the case. Meanwhile, some raise the doctrine of fructus arboris venenatae (fruit of the poisonous tree), arguing that any proceedings following an unlawful arrest are invalid. Others counter that this principle applies only to illegally obtained evidence, and since all evidence in this case predates Duterte’s arrest, it does not apply.

Deeper truth

This column does not take a position on the legality of the former president’s arrest, nor does it pass judgment on his guilt or innocence. But the ongoing debate reveals a deeper truth: due process is often demanded when one’s own rights are at stake, yet too easily dismissed when it is others who need its protection.

For the families of victims of the extrajudicial killings, this debate carries a painful weight. They abruptly and permanently lost their loved ones. They never had the chance to assert their innocence, to challenge the accusations against them, to seek legal relief, and to defend themselves in court. For them, due process was not just denied — it was never even an option.

To be sure, due process must be upheld for all, whether for a former head of state or for the most powerless among us. It is a fundamental pillar of justice that must be respected consistently, not a privilege that can be granted or withheld at will.

Former president Duterte will have his day in court before the ICC. The victims of his war on drugs never did. That is the most painful irony of all. – Rappler.com

The author is affiliated with several organizations, including the Justice Reform Initiatives, Inc.  where  he is the Chairman of the Board. The  opinions expressed in this column are purely his and should not be attributed to any organization iof which he is a member. He may be contacted at francis.ed.lim@gmail.com.