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Defense lawyer Nicholas Kaufman delivers his opening statement during the confirmation of charges hearing against former president Rodrigo Duterte on Monday, February 23. (Video courtesy of International Criminal Court)
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NewsTranscript
00:00And I thank Mr. Batouyan for his intervention, but I feel that I ought to remind him that this is
00:07a court of law which decides matters on the basis of evidence, not on the basis of political demagoguery, and
00:16not on the basis of a desire to effect regime change despite the democratic will.
00:23And certainly not on the basis of statements made by Ombudsman Jesus Crispin Remula, who professed that domestic justice would
00:32be denied, according to Mr. Batouyan, because of the lack of forensic reports and police reports.
00:39Now, I don't know which case Mr. Batouyan's metaphorical ship sailed into, but he clearly hasn't read the evidence.
00:46Whilst he was speaking, we examined the evidence, and out of that evidence we found at least 35 reports substantiating
00:5349 of the incidents which are mentioned in a document containing the charges.
00:58Your Honours, Rodrigo Duterte was and will always remain a unique phenomenon.
01:05His style of statesmanship was novel and unpalatable to many.
01:10His expletives and hyperbole grated, while his honesty and wild popularity irritated.
01:18He spoke openly, from the heart, sincerely and truthfully.
01:23And what a contrast between him and his successor in the Malacanang.
01:29For President Rudy, his word was his word, and the people knew it.
01:35For President Bong-Bong, his word is for the wind, and the people will not forget it.
01:41Let me remind everyone of the letter which President Ferdinand Marcos Jr. signed, it's on the screen,
01:49and in which he gave a cast-iron undertaking that his government, and I quote,
01:54will not assist the ICC in any way, shape, or form.
02:01Well, as we know, he failed to keep that promise.
02:05Rodrigo Duterte was unconstitutional and unceremoniously hauled off to The Hague.
02:11And when called upon to defend his master's actions on the said letter at a Senate committee hearing,
02:18the then Secretary for Justice, once again Mr. Jesus Crispin Remula,
02:23persisted with the same dishonest theme.
02:26And I quote his words,
02:28We did not assist the ICC, we continue with the very tenor of the letter,
02:34that we did not assist the ICC, and we did not have any contact with them.
02:39So he said,
02:41But with a document emanating from the prosecution team opposite,
02:45and disclosed to us a mere week ago,
02:48not as information material to the preparation of our defence,
02:51but as exonerating evidence,
02:54we can now substantiate what we have suspected for a long time.
02:59The document comprises a transcript of a telephone call,
03:03covertly recorded between four parties who cannot be mentioned in public,
03:08and one of these parties was boasting,
03:11boasting about how he was acting as the silent partner of President BBM,
03:17managing a scheme to funnel witnesses to this court
03:21while all the time ensuring that he could guarantee
03:24President BBM's plausible deniability.
03:29So it is indeed the defence case
03:32that President Ferdinand Marcos Jr.
03:35set out to neutralise Rodrigo Duterte and his legacy.
03:41Yes, Mr. Deputy Prosecutor,
03:43I used that legendary word, neutralise,
03:46so central and so essential to your case theory,
03:50because you know just as well as me
03:52that I am using the term metaphorically.
03:56And now I turn to the substance of the charges,
03:59but before I do,
04:00a word or two about the geopolitical context.
04:04The scourge of illegal narcotics
04:06is not unique to the Philippines.
04:08As we all know,
04:09it afflicts Latin America,
04:11where I can name three countries
04:12where the death rate at the hands of vigilantes
04:15and law enforcement agents per capita population
04:18is higher than it ever was under Duterte.
04:22And as you should know,
04:24and you will hear from the prosecution,
04:26at any rate,
04:27the Philippines as a country
04:28is uniquely positioned
04:30to act as a transit hub
04:32for the trafficking of narcotics
04:34emanating from the cartels in China.
04:36And with or without Duterte,
04:39so we argue,
04:40the death rate would have kept on rising.
04:43Indeed,
04:44as we will prove
04:46with statistics and reports,
04:48the death rate flowing from narcotics-related crime
04:51actually increased
04:52after Rodrigo Duterte left power.
04:55And where, I ask you,
04:57has the International Criminal Court been seen?
04:59That Rodrigo Duterte,
05:00anything,
05:01the totally lawful Duterte campaign
05:03against illegal drugs
05:05and their suppliers
05:06took place
05:07when his administration
05:09was after the declaration of martial law.
05:13And it was on that significant day
05:15that Rodrigo Duterte
05:17was exposed
05:18to the tyranny of oppression
05:20and the abuse of power by the elite.
05:23And he took a decision.
05:25On that day,
05:26he chose to devote himself
05:28to a life of selfless public service.
05:31As a professor
05:32at the local police academy
05:34and as a public prosecutor
05:36in Davao,
05:37Rodrigo Duterte
05:39developed a lifelong passion,
05:41some would say
05:42an enduring obsession,
05:44for law and order,
05:45something for which
05:46he unapologetically enforced
05:48throughout his time
05:50as mayor of Davao City.
05:53Not, as the prosecution say,
05:55through sowing murder
05:56and mayhem,
05:57but through winning the love,
05:59respect,
06:00and admiration
06:01of his fellow citizens.
06:03The very same citizens
06:05who continued to re-elect him
06:07time after time,
06:09term after term,
06:10on no less than seven occasions
06:12over more than two decades.
06:14And throughout
06:15his 20 or so years tenure
06:18as the mayor of Davao,
06:20Rodrigo Duterte
06:21and his family
06:22transformed that city
06:24from an outpost
06:25of communist insurgency
06:27and criminal violence
06:29into what is now
06:30one of the safest cities,
06:32not just in the Philippines,
06:33but in the entire world.
06:36This was indeed
06:37the so-called Davao model,
06:39which the prosecution
06:40wants to persuade you
06:42was code
06:43for unbridled criminal violence.
06:46And this was the type of leader
06:47that the Filipino nation
06:49wanted in 2016.
06:51So,
06:52Rodrigo Duterte
06:53was elected into power
06:55not in spite of,
06:57but specifically
06:58because of
06:59his firm
07:00and uncompromising
07:01commitment
07:02to upholding
07:03law and order.
07:06And after his election
07:07as president,
07:09Rodrigo Duterte
07:10remained
07:11a man of the people
07:12without seeking
07:13to patronize
07:14the people.
07:16gung-ho in his ways
07:17and with a belligerent tone,
07:19he spoke
07:19the tough tongue
07:20of the street,
07:21not the dissembling discourse
07:22of international diplomacy.
07:25He said
07:25what the people
07:26wanted to hear,
07:27but he said it
07:28in a way
07:28that offended
07:29sensibilities
07:30of world leaders
07:31unaccustomed
07:32to hearing it,
07:33one in particular,
07:34and that
07:35was what set him
07:36on the slippery slope
07:37to a prison cell
07:38in The Hague.
07:39And let me tell you
07:40how it works.
07:42It starts
07:43with the media,
07:43controlled by
07:45the powerful
07:45and the politically
07:47influential.
07:48With a sensational
07:49headline
07:50and a twisted
07:51editorial slant,
07:53the moguls
07:53sell their papers
07:54while promoting
07:55the partisan agenda
07:56of their backers
07:58in power.
07:58They highlight
08:00the salacious content
08:01while ignoring
08:02the true context
08:04because that
08:05is what captivates
08:06the reader.
08:07And so it was
08:08with Rodrigo Duterte,
08:09whose speeches
08:11were fertile fodder
08:12for his enemies
08:13and detractors,
08:15a man whose
08:16hyperbole,
08:17bluster,
08:17and rhetoric
08:18once published
08:20became a natural
08:21target for
08:22privately funded
08:23NGOs and
08:24human rights
08:24activists,
08:25a loose collective
08:26more commonly
08:27known as
08:28civil society.
08:30These people
08:31descended upon
08:32the Philippines
08:32to advance
08:33an agenda
08:34even more lacking
08:35in objectivity
08:36than that of the
08:37media,
08:38and heavily funded
08:39by tycoons
08:41with even
08:41grander designs.
08:43They print
08:43their glossy
08:44reports replete
08:46with iconic
08:47photographic images
08:48of grieving
08:49families and
08:51dead bodies
08:51in rain-swept
08:52night-time
08:54crime scenes,
08:55all dramatically
08:56illuminated with
08:57the fluorescent
08:58glow of neon.
08:59Images carefully
09:01crafted to shock
09:02the constants
09:03and to sway the
09:04emotions,
09:05and, I may say,
09:06to be used by
09:07the prosecutor
09:08when they don't
09:09even relate to
09:09the charges.
09:11And they gave
09:12their slick
09:13reports bold
09:14titles lifted
09:15straight out of
09:16a James Bond
09:17movie, such as
09:19Licence to Kill,
09:21One Shot to
09:22the Head,
09:23You Can Die
09:24Anytime,
09:26or simply
09:26They Just Kill.
09:28The photographers
09:30are fated,
09:30and their shots
09:31exhibited as art
09:32all over the
09:34world, and the
09:34brave journalists
09:35who act as their
09:36sources win awards
09:37and Nobel Prizes.
09:39And slowly but
09:40surely, their
09:41narrative becomes
09:43the sacred,
09:44unchallengeable,
09:45and unshakable
09:46truth.
09:46And so the
09:47pressure builds
09:48up, and the
09:49academics who
09:50haunt the
09:51corridors of the
09:52progressive left
09:52floor faculties far
09:54away in the United
09:55States tweet their
09:57research and publish
09:58their articles
09:59pontificating about
10:01crimes against
10:02humanity, systematic
10:04attacks against the
10:05civilian population,
10:06oppression, and
10:06they point their
10:07finger at one
10:08man, one man
10:10alone, and
10:11bandy about
10:12slogans such as
10:13accountability and
10:14the prevention of
10:15impunity.
10:16They give their
10:17gratuitous advice on
10:18what should be
10:19done, sometimes
10:20academics who
10:21formerly worked
10:22alongside the
10:22prosecutor of the
10:23International
10:23Criminal Court.
10:25Communications and
10:26complaints are
10:27filed, and the
10:28rest, as they say,
10:29is history.
10:31In any event, we
10:33are not gathered
10:34here today to
10:34judge a man on
10:35the basis of his
10:36coarse attitude or
10:37his vulgar language.
10:38This court has
10:39convened a
10:40confirmation hearing
10:41to verify whether
10:43substantial grounds
10:44exist to believe
10:46that Rodrigo Duterte,
10:47the people's
10:48president, together
10:50with various so-called
10:51co-perpetrators,
10:53over the years of
10:54his governance,
10:55devised a criminal
10:56policy of wholesale
10:58and wanton murder.
10:59And since we are
11:01in a court of law,
11:02it is worth
11:02stressing, although
11:04I should not have
11:04to, cases are
11:06decided on the
11:07basis of evidence,
11:08not supposition,
11:10not rumour, not
11:11spicy gossip, and
11:13certainly not on the
11:14basis of political
11:15rhetoric and bluster,
11:17because at the end
11:18of the day, were it
11:20not for those
11:20belligerent and
11:21controversial speeches,
11:23there would have
11:24been no impetus to
11:25bring the people's
11:26president to the
11:27Hague.
11:27And when the
11:28prosecution's evidence
11:29is examined, I
11:31would ask you to
11:32keep an open mind
11:33and to question not
11:35just whether that
11:36evidence has been
11:37selectively presented,
11:38but whether there
11:39exists evidence which
11:41the prosecution has
11:42failed to produce.
11:44And I say this with
11:45justifiable cause,
11:47particularly with
11:48respect to the
11:48Duterte rhetoric,
11:50as we will prove
11:51during the substantive
11:53part of our
11:54submissions, the
11:55notorious speeches on
11:56which the prosecution
11:57relies, have been
11:59cherry-picked to suit
12:01its narrative while
12:02ignoring the many
12:03other speeches when
12:05the former president
12:06tempered his bombastic
12:07language by clear
12:09reference to the
12:10principle of lawful
12:11self-defense.
12:13We, the defense, have
12:15read as many of these
12:16speeches as we can find.
12:18In fact, in our pokey
12:19little office on the
12:21top floor of the
12:22furthest building away
12:23in this complex, we
12:25have a counter which
12:26ticks and ticks.
12:28And whenever we come
12:30across a speech which
12:31contradicts the
12:32prosecution's murder
12:33theory by reference
12:34to self-defense, we
12:36give a cheer and the
12:37counter goes up once
12:39more and we celebrate
12:40one more nail in the
12:42coffin of the
12:42prosecution's case
12:43theory.
12:44As the statistics stand
12:46as of today, in
12:48contrast to the 20
12:49speeches on which the
12:50prosecution relies to
12:52prove incitement to
12:53kill, we have found
12:5535 more which say the
12:58complete opposite.
12:59Let me give you two
13:01examples from the very
13:02speeches that the
13:03deputy prosecutor
13:04himself cited today.
13:09Let's refer first of
13:11all to the famous
13:13Pieta speech which the
13:14deputy prosecutor
13:15referred to.
13:17So this is what the
13:18deputy prosecutor said.
13:19Those of you who are
13:20still sober, those who
13:21haven't tried illegal
13:22drugs, if you don't
13:23want to die or get
13:24hurt, don't rely on the
13:25priest, including human
13:26rights advocates.
13:28They won't be able to
13:29prevent deaths and so it
13:30goes on.
13:31But if we look further
13:33on in the very same
13:34speech, something which
13:36maybe the deputy
13:37prosecutor didn't do,
13:41this is what he had to
13:42say.
13:43To our police officers and
13:45other officials, do your
13:46job and you will have the
13:47unwavering support of the
13:49office of the president.
13:50I will be with you all
13:51the way, abuse your
13:53authority and there will
13:54be hell to pay, for you
13:56will have become worse
13:57than criminality itself.
13:59Well there you are, you
14:00have it straight in your
14:01face, pexo, exonerating
14:03evidence within what is
14:07claimed to be the
14:08prosecution in criminal
14:09thing.
14:10I won't take up my time by
14:11showing you the second
14:12speech but there is one.
14:13If I have time at the end
14:14I will show it to you.
14:15So if you add to that
14:17another ten speeches out
14:19of the twenty speeches on
14:21which the prosecution rely
14:23in its document containing
14:25the charges, after all we
14:27are in a court of law and we
14:28rely on evidence and what
14:29is the evidence that's
14:30produced of these speeches?
14:31Twenty of them.
14:32Ten of them I submit and we
14:34will show this in the
14:35substantive part of our
14:36submissions contain
14:38exonerating evidence which
14:39support the defence case
14:42theory.
14:43In other words, if you add
14:45the ten which we've
14:47identified in the
14:48prosecutions twenty to our
14:50total of thirty-five we
14:52come to forty-five speeches
14:54versus ten which we say
14:58support the use of force
15:00only in self-defence.
15:02That is three hundred and
15:04fifty percent more speeches
15:05in favour of our defence and
15:07three hundred and fifty
15:08percent more reasons not to
15:10confirm the charges.
15:11And you can bet your
15:12bottom dollar that at the
15:14end of today's proceedings
15:15either the victim's
15:16self-styled legal assistant
15:18to ICC counsel or a
15:20prosecution intern will be
15:22tasked with scouring the
15:24web looking for the means
15:25to prove Kaufman wrong.
15:27And I will declare it and
15:29I'll declare it loudly and
15:30clearly as if the
15:31prosecution didn't know it
15:32already.
15:33It's not enough to state
15:35that since the former
15:36president made those
15:38extremely inflammatory
15:39statements and death
15:41deaths occurred that he
15:42must as a matter of course
15:43be criminally responsible
15:45for those fatalities.
15:47At this stage of the
15:48proceedings the prosecution
15:51needs to show substantial
15:53grounds to believe that the
15:54former president actually
15:56desired and foresaw that
15:59people would be killed as a
16:01result of his incendiary
16:02language.
16:03For the prosecution to
16:05assert that Rodrigo Duterte
16:07hoped for deaths to occur or
16:09was recklessly indifferent as
16:11to whether deaths would
16:12occur which he was not.
16:14That's insufficient.
16:17So once more for the record
16:19Rodrigo Duterte's language was
16:22aimed not at suspected drug
16:23pushers as the prosecution
16:25would have it but directly at
16:27those poisoning society with
16:29their substances and not I
16:31stress with lethal intent.
16:33His rhetoric was calculated to
16:36arouse fear and obedience
16:38to instill fear in their
16:40hearts and to inculcate a
16:43respect for the law in their
16:44minds.
16:45Nothing more nothing less.
16:47That was his intent and it was
16:49not criminal and as many of
16:51these drug pushers demanded to
16:55enter prison.
16:56I remember seeing the images on
16:58the television lining up to
17:00surrender and to enter prison.
17:03Now I challenge my colleagues
17:05opposite to prove otherwise
17:06because as we all know in a
17:08criminal process the burden of
17:10proof is on the prosecution.
17:13They brought this case and they
17:15need to prove it.
17:17Rodrigo Duterte need not convince
17:19the world of anything and that is
17:21to his fortunate advantage given
17:22his current medical condition.
17:24He stands behind his legacy
17:27resolutely and he maintains his
17:30innocence absolutely.
17:32Now I turn to the general
17:34fairness and objectivity of the
17:36investigation which as we all
17:38know is meant to be an impartial
17:40evidence gathering exercise.
17:43As an ex-prosecutor myself I'm used
17:46to investigating agencies pursuing
17:49all reasonable lines of inquiry
17:50assimilating all testimonies and
17:54digesting all documentation and
17:56forensic evidence recommending who to
17:59target for prosecution but not so
18:02with this prosecution.
18:03When we the defence study the course
18:05of the investigation in this case
18:07one thing is plain as a pike
18:09staff.
18:10The chief prosecutor of this court
18:12Mr Karim Khan not only failed
18:16miserably to carry out his duties
18:17under the Rome statute requiring him
18:20to examine exonerating circumstances as
18:24well as incriminating but he
18:26single-handedly contaminated it so we
18:28alleged by pursuing a one-track
18:31crusade with a view to a
18:33predetermined objective.
18:35Let me explain.
18:37Although the ICC officially authorised
18:40an investigation into the so-called
18:42Philippines situation in late 2021
18:45it was deferred a few months later back
18:48to the Philippines for the official
18:50investigation to resume only in late 2023.
18:55But the real meat of the investigation
18:58into count one relating to the
19:01activities of that fictitious construct
19:04the Davao Deaf Squad had effectively
19:07started way before then with the sole objective
19:11of nailing Rodrigo Duterte.
19:14Indeed all the way back in 2018
19:17during its so-called preliminary examination
19:20the prosecution had an individual
19:22who will be referred to as P1
19:25handed to them on a silver platter.
19:28This P1 had been interviewed at an earlier date
19:31by none other than chief prosecutor Karim Khan
19:34in his former capacity as a private lawyer
19:37and the self-professed legal
19:52합니다 of the interview.
19:53You can have a question.
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