THE nagging and vexing legal issue of whether or not the government, particularly the president, as the head of the executive department, can effect the arrest, detention, rendition or surrender of a Filipino citizen to the International Criminal Court (ICC), pursuant to a warrant of arrest issued by it, as in the previous case of former president Rodrigo Duterte and in the present situation of Sen. Ronald “Bato” de la Rosa, has been swirling for the last 14 months, and birthed diametrical opinions on the members of the bar. It is amusing to hear former jurists who are otherwise knowledgeable in constitutional law giving biased opinions on the matter just because they dislike Duterte and de la Rosa. Non-lawyer members of the upper and lower houses of Congress cannot stop themselves from spreading their ignorance on the legal subject.
The Office of the President, the Department of Justice, and the Office of the Solicitor General uniformly invoke Section 17 of Republic Act 9851, otherwise known as “Philippine Act on Crimes Against International Humanitarian Law, Genocide, And Other Crimes Against Humanity,” to justify the prior arrest of Duterte and surrender to the ICC at The Hague, as well as the present attempt at arresting Senator Bato pursuant to an ICC issued warrant of arrest as lawful.
Section 17 of RA 9851 is quoted hereunder:
“In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable laws or treaties.”
Despite several petitions pending before the Supreme Court on such constitutional issue, and other related matters, the same remains unresolved. The delayed resolution by the body mandated by the Constitution for an authoritative and final ruling has emboldened the executive branch to pursue recklessly its insatiable obsession to violate the constitutional rights of the critics of the administration’s policies and strip the liberty of another political ally of Duterte and put them together in the ICC detention facility and languish there indefinitely.
The aforementioned government offices argue that the circumstances surrounding the arrest of Duterte, as well as the impending arrest of de la Rosa, fall squarely within Section 17 of RA 9851.
They point out that since Duterte and de la Rosa have been investigated and are being prosecuted by the ICC for crimes against humanity, the government therefore has the authority to enforce the warrant of arrest issued against the two and surrender them to the ICC pursuant to Section 17 of RA 9851.
The fallacy of such an argument is glaring by a careful reading of the aforementioned provision.
The government and other adversarial advocates are utterly oblivious of the conditions imposed by the said Section 17.
The phrase “In the interest of justice” that precedes the grant of authority to the government to surrender or extradite suspected or accused persons of crimes against humanity is a sine qua non for the exercise of such authority. In other words, the option to surrender or to extradite those persons described can be made only if such action is in the interest of justice.
The phrase “in the interest of justice” is a legal principle that encapsulates fairness, equity and moral rightness.
Is it in the interest of justice to surrender a Filipino citizen committing a crime against humanity against another Filipino citizen committed on Philippine soil to a foreign tribunal?
Is it in the interest of justice to subvert our judicial and legal system and substitute it with that of a foreign institution?
Is it in the interest of justice to surrender our sovereignty and territorial integrity to an international court that has already lost its jurisdiction over the Philippines following the latter’s effective withdrawal?
Is it in the interest of justice to allow a foreign entity to assault our independence as a nation by imposing its jurisdiction and authority over us?
Obviously, the answer to all those questions is a resounding “No”!
There is also another condition imposed by Section 17 of RA 9851 that was conveniently ignored by the authorities. And that is the colatilla that states that any surrender and extradition of the aforesaid suspects and accused persons, the same must be in accordance with extradition laws and treaties.
The extradition law requires that before a person is extradited, the government is obligated to file a petition for extradition in court and comply with the procedural requirements imposed by law. Only when the court grants the extradition petition will the person subject thereof will be surrendered to the requesting State.
Both these aforementioned conditions are anchored on the due process clause of the Constitution. RA 9851, insofar as it grants the government the authority to surrender a person accused of crimes against humanity, must be in accord with the due process clause of the Constitution before such authority is exercised. Any surrender or extradition of any citizen without complying with the mandatory requirement of due process is constitutionally infirm.
The enforcement of the ICC arrest warrant goes against the very heart of the due process clause of the Constitution.
The Constitution gives the absolute command: “No person shall be deprived of life, liberty or property without due process of law.”
Due process simply means: it hears before it condemns. Before a person is divested of his liberty, (i.e., a warrant of arrest is issued against him or her), a judge of a competent court must personally determine the existence of a probable cause that the person may have committed the crime charged. Only then can he be deprived of liberty. Outside of such judicial requirement compliance, no restraint on his or her person can be made. Any restraint that precludes freedom of action, as the Supreme Court succinctly ruled in the case of Moncupa vs Enrile, G.R. No. L - 63345, January 30, 1986, is unconstitutional.
Stated otherwise, the government or the president in particular cannot surrender suspected or accused persons of commuting crimes against humanity to the ICC or to any country, without the prior imprimatur of a Philippine court.
Not only is it against our national interest, but it is also a thunderous slap and insult to our national pride for the ICC to impose its jurisdiction and authority over us.
The country’s sovereignty must be asserted and protected at all costs, against any and all forms of assault, intrusion, interference, dominance, subterfuge, and subjugation.
