ON May 11, Sen. Ronald “Bato” dela Rosa emerged in the Senate session hall after a monthslong absence to help wrest the Senate presidency for Sen. Alan Peter Cayetano.
That same day, dela Rosa filed an “extremely urgent manifestation and motion” before the Supreme Court. He petitioned it to prevent his arrest by the National Bureau of Investigation after the International Criminal Court (ICC) issued a warrant for his arrest. In the wee hours of May 14, he surreptitiously left the Senate premises and has been in hiding since.
In a majority vote on May 20, the Court en banc thumbed down dela Rosa’s petition. The Supreme Court clarified, however, that the decision was only on the injunction. It does not resolve yet the main issue in the combined petitions of dela Rosa and former president Rodrigo Duterte: whether the ICC arrest warrant is valid and constitutional, even without a warrant issued by a regional trial court judge who determines the existence of “probable cause” to justify surrender to the ICC.
The texts of the ponencia reflected how differently Supreme Court justices view the issue. Of the nine magistrates who voted to deny the petition, four wrote separate concurring opinions. The five who voted to grant the temporary restraining order (TRO) wrote separate dissenting opinions that advance their own legal reasons and justifications for their votes.
Social media posts by various individuals, opinion makers and content creators abound. Each cites and quotes the opinion of individual justices as they fit their desired narratives.
A review of the gist of the Supreme Court justices’ expressed opinions on the denial of the injunction prayed for do not necessarily indicate how they would vote on the main issue of the joint Duterte and dela Rosa petitions.
The most telling is that of Associate Justice Alfredo Benjamin Caguioa. He did not just concur with the Court’s denial of the injunction; he maintains that it should not come to dela Rosa’s rescue. He went on to say the petitioner’s “recent history of impunity” is what drove victims of Duterte’s anti-drug campaign to seek relief before an international tribunal. He argued that “there is no need for a separate warrant from a Philippine judge in order because probable cause determinations for ICC cases fall exclusively under ICC judges.
On the other hand, of the five associate justices who voted in favor of granting the TRO, the most prominent was that of Associate Justice Antonio Kho Jr. He contended that dela Rosa’s prayer is meant to save him from “irreparable injury,” should he be arrested and surrendered to the ICC. Any subsequent ruling of the Court that may be favorable to him, Kho said, will be of no moment when he is already beyond the reach of the Philippine judicial process.
While I must yield that prudence dictates that all efforts must be exerted to hunt down and arrest dela Rosa before he slips out of the country, prudence also dictates that it is best to wait for the Court’s decision on the main issue before implementing the warrant.
This is not to shield dela Rosa from the serious crimes he is accused of committing. I am with the victims of extrajudicial killings and their families in their quest for justice and accountability.
It may now be settled jurisprudence, in the case of Pangilinan vs. Cayetano, that the ICC has the power and authority to hear and decide cases of Filipino citizens charged with crimes allegedly committed before the Philippines withdrew from the ICC on March 17, 2019. But the issue on whether or not Filipino citizens can be surrendered to the ICC — as in the case of the former president — without observing the due process required by our Constitution is yet to be decided by the Court. And this is of transcendental importance.
The ICC: Court of last resort
Apart from the fact that the crimes allegedly committed are among those enumerated in Article 5 of the Rome Statute, admissibility to ICC jurisdiction happens when the state party’s judicial system is “unwilling or unable genuinely to carry out the investigation or prosecution” as provided in Article 17 of the statute. Other than that, domestic courts of state parties always maintain the primary authority to prosecute crimes.
Under Chapter VII, Section 18 of Republic Act 9851, which predates our membership in the ICC, the regional trial court has exclusive and original jurisdiction. The executive department’s mobilization and facilitation of the surrender of our citizens to the ICC is an implied admission that the alleged victims cannot obtain justice in our courts. This is for President Ferdinand Marcos Jr. to say that our courts are “unwilling or unable genuinely to carry out the investigation or prosecution” under our domestic laws.
I wonder if the Justice department would subscribe to that tacit confession. To be sure, this is a major challenge to the judiciary. There may be vast areas of improvement in the manner that courts dispense justice, but they dispense, nonetheless. The wheels of justice may grind slowly, but it does, nonetheless.
But the government’s surrender of our citizens to an international court due to local courts’ unwillingness and inability to genuinely investigate and prosecute offenders is for the Supreme Court to determine. This is because such conditions of our judicial system are what make the case of Duterte and his co-conspirators admissible for prosecution and trial in the ICC.
While waiting for the Supreme Court decision, there’s no stopping law enforcers from searching far and wide; employing their resources and expertise, and leaving no stone unturned to track down and arrest dela Rosa. And for the latter, utilize his skills to escape and evade arrest.
atty.edarevalo@gmail.com
