(UPDATE) THE Supreme Court’s 9-5-1 vote denying Sen. Ronald Dela Rosa’s plea for a temporary restraining order (TRO) against an International Criminal Court (ICC) arrest warrant exposed a sharp divide within the tribunal, with most justices insisting the judiciary must not become a refuge for fugitives.
The five dissenting justices — all appointed by Rodrigo Duterte when he was president — warned the ruling could subject the senator to “irreparable injury.” In a special en banc session on May 20, the Court rejected Dela Rosa’s request for a TRO, status quo ante order or preliminary injunction that would have barred law enforcers from cooperating with any arrest based on an ICC warrant, International Criminal Police Organization notice or foreign judicial process absent a Philippine-issued warrant. The full resolution, including concurring and dissenting opinions, was made public on Monday, May 25.
The Court clarified that it had ruled only on interim relief and that the main petition raising substantive constitutional issues remains pending.
Not shield for fugitives
Several justices in the majority took a hard-line stance against granting provisional protection, stressing that the judiciary should not be used to obstruct criminal accountability proceedings.
Associate Justice Alfredo Benjamin Caguioa said the Court “should not come to the rescue” of an individual accused of mass violence, warning that granting relief would “prolong historical injustices” and undermine victims of the antidrug campaign.
He argued that ICC arrest mechanisms do not require a separate Philippine warrant, citing provisions of the Rome Statute and maintained that determinations of probable cause in ICC cases fall under ICC judges, not domestic courts.
Senior Associate Justice Marvic Leonen, in a separate opinion, emphasized that courts generally do not enjoin criminal proceedings in advance, noting that remedies remain available after arrest through proper legal channels such as habeas corpus.
Associate Justice Maria Filomena Singh, meanwhile, invoked the “clean hands” doctrine, pointing to Dela Rosa’s alleged evasion of legal processes. She noted that he had surfaced to participate in Senate proceedings before going into hiding again.
“This conduct shows that Senator Dela Rosa only engaged with the legal processes based on his convenience,” Singh wrote, adding that equitable relief cannot be granted where bad faith is apparent.
Justice Rodil Zalameda anchored his concurrence on Republic Act 9851, known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, citing its provision allowing Philippine authorities to surrender individuals to international tribunals, and stressed that the case also involves executive discretion in foreign relations.
Caguioa further placed the case in the context of the previous administration’s antidrug campaign, citing Court-recognized figures of over 20,000 deaths.
“The Court cannot become a refuge for impunity,” he said.
Dissent: Risk of irreversible harm
Five justices dissented, warning that denying injunctive relief exposed Dela Rosa to “irreparable injury” if arrested and transferred to The Hague without sufficient domestic legal safeguards.
Justice Ramon Paul Hernando, who was appointed by President Rodrigo Duterte in 2019, argued there was no valid Philippine judicial process authorizing surrender to the ICC, stressing that any arrest based solely on a foreign warrant would lack domestic legal foundation.
He warned that once Dela Rosa is turned over to foreign jurisdiction, any later remedy would be “inutile and illusory,” as the harm could no longer be reversed.
Justice Amy Lazaro-Javier, another Duterte appointee, said the case required “a disciplined legal inquiry,” not one driven by public sentiment, and insisted that the right involved was not impunity but protection against unlawful deprivation of liberty.
“The potential injury is juridical, concrete and irreparable,” she wrote, warning that failure to act would allow constitutional questions to be overtaken by events.
Also a Duterte appointee, Justice Antonio Kho Jr. questioned the constitutionality of Section 17 of Republic Act 9851, arguing it lacks clear standards governing surrender to international tribunals and could amount to an excessive delegation of executive power.
Justice Ricardo Rosario, also a Duterte appointee, maintained that ICC warrants have “no self-executing force” in the Philippines and require compliance with domestic judicial processes, including a determination of probable cause by a local judge.
Duterte appointee Justice Henri Jean Paul Inting argued that a status quo ante order was necessary to preserve the Court’s authority, warning that without it, the case could be reduced to a “paper judgment.”
Sharp institutional divide
The competing opinions revealed a fundamental divide within the Court: the majority stressing judicial restraint and noninterference in enforcement of international obligations, while dissenters emphasized constitutional safeguards, due process and the risk of irreversible consequences once arrest and transfer occur.
The majority maintained that Dela Rosa failed to establish a clear legal right or imminent irreparable injury, and that provisional relief cannot be used to preempt lawful enforcement actions.
The dissenting bloc, however, warned that once a suspect is surrendered to a foreign tribunal, domestic courts effectively lose jurisdiction, making later remedies ineffective.
The ruling does not resolve the wider constitutional questions surrounding the Philippines’ cooperation with the ICC, nor does it settle the validity or enforceability of the warrant itself. Those issues remain pending before the Court.
