The legality of Duterte’s arrest, surrender
The International Criminal Court (ICC) will not look into how former president Rodrigo Duterte was arrested and surrendered to it. In a recent lecture, retired ICC judge Raul Pangalangan was clear on this: No matter the manner of his arrest, the Court will now try him at The Hague for crimes against humanity in connection with the thousands killed during his horrifying “war on drugs.”
While justice may finally be served, the lawfulness of his arrest remains a live issue in the country, with Sen. Ronald “Bato” dela Rosa now litigating it before the Supreme Court.
Under our Bill of Rights, “no … warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses…”
The arrest warrant against Duterte was issued by three ICC judges upon “reasonable grounds to believe” that he committed the crimes. Does this comply with our Bill of Rights? Should the issuing judges belong to the Philippine judiciary? Is “reasonable grounds to believe” a laxer requirement than “probable cause”? The case would have been easier had the Philippines not withdrawn from the Rome Statute of the ICC. It would have clearly required that Duterte be brought promptly before a Philippine court to determine if his arrest complied with Philippine law.
Retired Supreme Court senior associate justice Antonio Carpio argues that Duterte’s arrest and surrender to the ICC can be based on Republic Act No. 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Like the Rome Statute, RA 9851 penalizes the widespread murder (or willful killing) of civilians as a crime against humanity. Unlike it, however, RA 9851 does not require that persons arrested be brought to court before “authorities may surrender” them to the ICC. All RA 9851 requires is that “another court or international tribunal is already conducting the investigation or undertaking the prosecution” of the crime one is being charged with.
Notice that RA 9851 says “may surrender,” not shall surrender. It leaves the decision to “the relevant Philippine authorities.” Given the President’s control over government bureaucracy, this discretion ultimately rests with President Marcos.
Partisan politics probably played a part in Duterte’s surrender. This is not new. Consider the deportation in 1962 of the American Harry Stonehill. One item seized during the National Bureau of Investigation raids against Stonehill was a letter asking then President Diosdado Macapagal, whose campaign Stonehill supported, to reserve government posts such as agriculture secretary and monetary board chair for his associates. Stonehill never faced a Philippine court. Macapagal had him hastily deported the day after he petitioned to leave the country.
Despite the former president’s wide discretion to deport foreigners, the Supreme Court has acknowledged it “undemocratic to hold that an alien may be deported upon an unstated or undefined ground depending merely on the unlimited discretion of the Chief Executive.” Notice and hearing are required to deport foreigners, who have a far weaker right than citizens to remain in the Philippines. The Supreme Court once ruled that the mayor of Manila may not forcibly ferry the city’s prostitutes to Davao.
In 1989, the Marcos family invoked the right to travel when then President Corazon Aquino barred them from returning to the Philippines. They argued that there was no statute expressly authorizing the impairment of their right to travel. In Marcos v. Manglapus, the Supreme Court ruled that the right involved was not the right to travel but the related right to return to one’s country.
Impairment of this right did not require legislation. And considering “the capacity of the Marcoses to stir trouble” due to “the fanaticism and blind loyalty of their followers in the country,” then President Aquino could use her powers as protector of the peace to prevent their return. Ironically, the same argument may be made to justify why Duterte was hastily surrendered to the ICC. He has the capacity to stir trouble by rallying his loyal followers in the country (imagine if his plane had landed in Davao, not Manila). The decision to forego bringing him to court might have been necessitated by this extraordinary circumstance.
“This case is unique,” said the court in Marcos v. Manglapus. “It should not create a precedent.” The same can be said about Duterte’s arrest and surrender. Ordinarily, citizens should enjoy stronger due process safeguards before they are surrendered to an international tribunal such as the ICC.
I hope Congress amends RA 9851 to lay out these safeguards, perhaps again using the Rome Statute as a guide. I hope the Supreme Court also clarifies the applicability of the Rome Statute’s procedural safeguards for persons arrested under an ICC warrant.
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Bryan Dennis Gabito Tiojanco is a project associate professor at the University of Tokyo. He holds a J.D. (cum laude) from the University of the Philippines, and an LL.M. and J.S.D. from Yale Law School.
