The fiction of ‘protective custody’
Scripted or not, the chaos at the Senate Wednesday night begs thorough investigation and should exact accountability where it lies. Was it staged to generate sympathy for besieged Sen. Ronald “Bato” dela Rosa, or as distraction to allow his alleged escape? While things remain fluid, one thing’s sure: the Senate is “under attack,” as declared by Senate President Alan Peter Cayetano that night of the long arms.
Unfortunately, the forces laying siege come from the chamber itself. By protecting international fugitive Dela Rosa, the Senate leadership has willfully shrugged off the mantle of moral authority and independence that the institution should maintain as part of the checks and balances in governance.
Dela Rosa’s warrant of arrest from the International Criminal Court (ICC) stems from his being the architect and chief enforcer of former President Rodrigo Duterte’s ruthless war on drugs that resulted in thousands of extrajudicial killings (EJK).
Cayetano, who had convinced Dela Rosa to come out of hiding to cast the crucial 13th vote to oust then Senate President Vicente “Tito” Sotto III (as Dela Rosa himself admitted in a TV interview), has placed the latter under Senate protective custody.
Rome Statute
“[T]he warrant of arrest should be from a Philippine court,” Cayetano said Tuesday in what legal experts called a misreading of Republic Act No. 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Under Section 17, the law states that “relevant Philippine authorities may dispense with the investigation or prosecution of a crime … if another court or international tribunal is already … undertaking [its] prosecution. Instead, authorities may surrender or extradite … accused persons in the Philippines to the appropriate international court … or another State pursuant to the applicable extradition laws and treaties.”
This should counter Dela Rosa’s claims in his plea for support that he was being made to answer before a foreign court and that our sovereignty was being undermined by foreigners.
Rise Up, which advocates for the rights of EJK victims and their families, also noted that questions on the ICC warrant and its jurisdiction cannot be entertained by local courts because the Rome Statute, where the Philippines was originally a signatory, provides that only the ICC can decide those based on its investigation of crimes against humanity.
A valid arrest order
Despite Duterte withdrawing the country’s ICC membership in 2018, the tribunal asserted that it retains jurisdiction over crimes committed when the country was still its member. The Supreme Court, in its earlier ruling on Pangilinan v. Cayetano in 2021, also maintained that leaving the ICC fold “does not discharge a state party from the obligations it has incurred as a member.”
To support his stand, Cayetano had insisted that no arrest had ever been made in the Senate, conveniently forgetting how then Senators Leila de Lima and Antonio Trillanes IV were arrested inside the Senate premises.
Former Senate President Franklin Drilon meanwhile noted that the Senate cannot legally ban authorities from enforcing a valid arrest order. “The continued non-arrest of a senator is because of tradition, not because of law,” he said. Drilon added that only two conditions afford senators constitutional protection from arrest: if the offense carries a penalty of six years or less, and the Senate is in session at the time, both of which do not apply here, he added.
With Senate matters held up by the Dela Rosa case, minority Senators Sotto, Panfilo “Ping” Lacson, Risa Hontiveros, Francis “Kiko” Pangilinan, and Paolo Benigno “Bam” Aquino IV filed a resolution calling for the embattled senator “to voluntarily surrender to the proper authorities and seek judicial remedies in accordance with the Constitution and applicable laws and rules.”
Misguided protection
Though the Supreme Court has not issued Dela Rosa’s petition for a temporary restraining order against his arrest, he has stuck to his defiant “no surrender” stance. This, and the Senate majority’s misguided protection of one of their own only firm up the ICC case. With elected officials sheltering fugitives instead of allowing due process to take its course, the intervention of an international court becomes a necessity. With accountability set aside for the powerful, the families of EJK victims have no recourse but file their case before the ICC after being denied justice by their own government.
Unless it wants to jeopardize the country’s global standing in international law, the Senate must adhere to the legal process and surrender Dela Rosa, or coax him to do so. If he escaped, a manhunt may be warranted to bring him within the ambit of the law. The Senate must not stand in the way of the search for justice for thousands of Filipinos slain in the Duterte drug war.
Why must the entire country wallow in self-serving politics for one man who has shown neither regret nor remorse for enabling an era of impunity he now seeks to bring back?
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