THE separate concurring and dissenting opinions in the recent Supreme Court ruling denying Sen. Ronald “Bato” dela Rosa’s request for a temporary restraining order and status quo ante order against possible International Criminal Court (ICC)-related arrest proceedings are among the most intellectually fascinating judicial writings in recent years.
Over the course of my free time these past few days, I read all of them carefully. What struck me was that the justices were not merely disagreeing over technical procedure or remedial law. Beneath the legal language lies a deeper philosophical divide about constitutionalism, sovereignty, accountability and the nature of State power itself.
At the center of the divide is a simple but profound question: What is a Constitution ultimately for?
The dissenting opinions largely approached the issue from the perspective of sovereignty and constitutional safeguards. They feared that international enforcement mechanisms, absent explicit domestic procedures and judicial mediation could erode constitutional order and allow executive overreach. They warned that surrendering a Filipino citizen to the ICC before all constitutional questions are resolved risks hollowing out the judicial authority itself.
There is merit to this concern. I have long argued against executive abuse, coercive governance and the dangerous normalization of state power. I have consistently defended civil liberties regardless of who occupies Malacañang. Constitutional safeguards matter precisely because the State possesses immense coercive power over citizens.
But after reading all the opinions carefully, I ultimately found myself agreeing more with the separate concurring opinions because crimes against humanity are fundamentally different from ordinary criminal cases.
Crimes against humanity are, by their very nature, usually committed by State actors or by individuals exercising State power. Constitutions, meanwhile, exist precisely to limit State power and protect ordinary citizens from its abuse.
This, for me, is the point the dissenters seem to have missed.
The Constitution does not exist primarily to shield powerful officials accused of grave abuses committed under the mantle of State authority. It exists to protect citizens from precisely those abuses. Constitutionalism is fundamentally an anti-abuse project. It emerged historically to restrain kings, rulers, militaries, governments and coercive institutions.
The obligation of constitutionalism therefore lies first and foremost with the victims, the ordinary citizens whose rights, dignity and lives were allegedly violated, and not with the State actors accused of abusing powers temporarily entrusted to them by the Constitution itself.
This is not the same as ordinary criminal cases adjudicated in domestic courts where both the accused and the victims are private individuals. Rodrigo Duterte and Bato dela Rosa are not being accused before the ICC as ordinary citizens acting in purely personal capacities. They are accused precisely because of acts allegedly committed through the machinery, coercive force and authority of the State itself.
To invoke sovereignty and constitutional protections in a manner that effectively insulates State actors from accountability for crimes against humanity risks inverting the moral and constitutional order. It transforms the Constitution from a restraint on State power into a shield for its abuse.
Because once sovereignty becomes an impenetrable defense for rulers accused of mass violence, constitutionalism ceases to protect citizens and instead begins protecting power itself.
This is why I found the concurring opinions more persuasive. They recognized that constitutional law cannot remain frozen within a narrow, domestically insulated conception of criminal accountability. They acknowledged that constitutional rights remain protected even within international cooperation mechanisms. More importantly, they understood that proceduralism itself can become a technology of impunity.
Throughout history, powerful actors have repeatedly invoked sovereignty, jurisdictional complexity, technical procedure and institutional delay not necessarily to defend constitutional democracy, but to indefinitely postpone accountability. Cases drag on for years. Legal processes become labyrinths. Technicalities become political refuge. Public memory fades. Institutions weaken. Accountability evaporates.
The Philippines is deeply familiar with this pattern. We have long suffered from a political culture where institutions are strong against the weak but weak against the powerful. Ordinary citizens experience the full coercive force of the law, while political elites often possess the resources, influence and networks necessary to indefinitely defer accountability.
This is precisely why institutions like the ICC emerged in the first place.
The dissenters also seem to forget that the ICC is not some rogue tribunal operating outside legal order. It is part of an international legal architecture created precisely because domestic systems throughout history have often failed or refused to hold powerful State actors accountable for mass atrocities.
One may critique the ICC. One may question the asymmetries and geopolitics of international law. One may even criticize the selectivity with which international justice is sometimes pursued. These are legitimate critiques. But none of these erase the historical reason why the ICC exists.
It exists because sovereign States themselves have repeatedly failed to deliver justice when those accused are the very individuals who controlled the coercive apparatus of the State.
Ironically, it is precisely the unintended consequence of the philosophy reflected in many of the dissenting opinions, where sovereignty and constitutionalism become tools shielding State abuse, that justifies the continued existence of institutions like the ICC.
Sovereignty cannot become a blanket defense for abusive rulers. A democratic Constitution faithful to its foundational principles must always lean toward protecting citizens from abusive power, not protecting abusive power from scrutiny.
The separate concurring opinions understood this tension better. They did not abandon constitutionalism. They did not discard due process. They did not proclaim unconditional ICC supremacy. In fact, many of them explicitly acknowledged unresolved constitutional questions surrounding jurisdiction, surrender procedures and executive authority.
But they also refused to transform provisional remedies into anticipatory immunity from accountability.
The central divide in these opinions is not simply “pro-ICC” versus “anti-ICC.” It is whether constitutional democracy should prioritize preventing accountability from becoming impossible or preventing sovereignty from becoming permeable.
For me, the greater danger today is when constitutionalism becomes so procedurally rigid that it loses its original democratic purpose of restraining abusive State power in defense of ordinary citizens.
Because once constitutions begin shielding rulers more effectively than they protect victims, constitutionalism itself begins its slow death.
Antonio P. Contreras is a professor at the University of the Philippines Los Baños and vice chairman of the board of state-run PTVNI.
