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The children of former President Rodrigo Duterte are clinging their hopes on the Philippine Supreme Court (SC), following their father’s arrest over crimes against humanity.
On the same day Duterte was arrested by the Interpol and local authorities through an International Criminal Court (ICC) warrant, his longtime ally and first Philippine National Police chief Senator Ronald “Bato” dela Rosa filed a petition for certiorari and prohibition, with a request for a temporary restraining order (TRO).
This signified the start of the legal showdown in the country in connection to Duterte’s ICC saga. Dela Rosa’s request for a TRO was eventually denied by the SC, but three of Duterte’s children filed three separate petitions seeking the former president’s return.
Betting on habeas corpus
The Duterte children are betting on habeas corpus, a protective measure commonly sought by activists. It is an extraordinary legal measure directly translated as “produce the body.”
It is used to challenge the detention of a person, lobby for their release, and “to inquire into the cause of detention of a person.” ICC assistant counsel to the drug war victims Kristina Conti previously said that a “successful habeas corpus petition allows the release of a person under custody and dismissal of the case when the detention has been shown to be without legal basis.” (READ: How the SC ruling on Gigi Reyes’ release changes the game on habeas corpus)
As president, Duterte threatened in 2019 to suspend the writ of habeas corpus and arrest “all” of his critics.
A day after Duterte’s arrest and send-off to the ICC headquarters, his youngest child, Veronica (also known as Kitty), filed a petition for habeas corpus on March 12. On the same day, Davao City Mayor Sebastian (also known as Baste) Duterte filed a similar petition. Another son, Davao City Representative Paolo Duterte, also filed his separate habeas corpus petition on March 12, according to the SC. The lawmaker filed petitions for certiorari and prohibition, and requested a TRO.
Since the three petitions are similar, the SC consolidated or merged the three petitions.
In his petition, Paolo claimed his father was unlawfully arrested and illegally detained. He also argued that the Philippine officials named as respondents in his petition allegedly committed grave abuse of discretion when they cooperated in the warrant’s execution because the Philippines is no longer part of the ICC.
“Cooperation on the part of any of the branches and instrumentalities of the government of the Philippines in enforcing the warrant of arrest after the effectivity of our withdrawal from the ICC is patently unconstitutional,” the Davao City lawmaker claimed.
Baste, in his petition, also argued that the ICC has no jurisdiction: “[The] petitioner humbly submits that his father was arrested and is illegally detained pursuant to a purported warrant of arrest issued by the International Criminal Court. His father was denied his constitutional rights by surprising him of arrest upon arrival from his trip to Hong Kong without giving him due notice to defend himself by filing any comment or counter arguments prior to the issuance of the warrant of arrest.”
Contrary to some of the Duterte camp’s claims, the Interpol and local authorities had a warrant when they arrested Duterte. Arresting officer Police Major General Nicolas Torre III read Duterte his Miranda rights, and some legal experts said it was not even necessary since Duterte was facing an international case, not a local one.
Although the Philippines has severed its ties with the ICC and is no longer a member-state, the ICC had the warrant implemented through the Interpol. Local authorities have repeatedly said the Philippines was obliged to cooperate with the Interpol since it’s part of the international body.
The all-women judges of the ICC Pre-Trial Chamber I reiterated in their warrant against Duterte that the court has jurisdiction since the alleged crimes happened from November 1, 2011 to March 16, 2019 — a period when the Philippines was still part of the Rome Statute.
No jurisdiction?
Can a local remedy like habeas corpus compel the ICC to send back the former president who waged a drug war that killed nearly 30,000 people, based on human rights groups’ tallies?
“Habeas corpus is premised and predicated on the presence of the person in the Philippines, a person who’s under a court’s jurisdiction. But former president Duterte is no longer here, he’s under the custody of an international court,” ICC-accredited lawyer Joel Butuyan told Rappler in an interview.
“Our Supreme Court has no jurisdiction and power [over the ICC]. Even our Supreme Court has no power to issue orders against an international court.”
Former SC spokesperson and University of the Philippines (UP) law professor Theodore Te said in a forum organized by the UP College of Law that the High Court cannot look at the issue of ICC jurisdiction, review the ICC warrant, the manner the warrant was enforced, as well as Duterte’s detention.
Recall that there is a 2021 reminder from the SC where it said that the Philippines was still obliged to cooperate in criminal proceedings of the ICC, even if it had withdrawn from the Rome Statute effective 2019. But this was not a ruling, but rather an obiter — an opinion made by a magistrate that does not set a precedent and is not legally binding.
“From the point of view of the ICC, I don’t think that those would be relevant questions for the domestic proceedings before a domestic court. So they would be performing functions under the statute where their mandate comes from so they would be blind to these proceedings although we can expect that these matters might also be put forward,” said UP Institute of International Legal Studies chief Mike Tiu.
Marcos’ chief presidential legal counsel Juan Ponce Enrile had also said that Duterte’s legal predicament was not caused by Philippine laws, but rather by laws enforceable by an international court.
“His lawyers should endeavor to secure a copy of the ICC charges against him so that they will know why he was ordered to be arrested by the ICC. Philippine domestic laws have nothing to do with his current legal problem,” he said.
TRO’s relevance
Immediately after Duterte’s arrest, there was disinformation about the SC issuing a TRO courtesy of Dela Rosa’s petition. Duterte supporters then claimed Duterte should thus not be flown to the Hague because there’s a TRO that prevented the warrant from being implemented.
Some people speculated last week that Dela Rosa’s TRO petition might have become moot and academic because Duterte was already flown to another territory.
For Te, the SC’s action on the TRO petition is significant. He noted that the High Court did not deny the TRO’s issuance because it was moot and academic, but because there was no clear legal right mentioned in the petition.
“The court could also, however, simply take the easier way out, as it were, by simply saying, well, it is moot and academic, it is because he is no longer here,” Te said.
“But by stating very clearly that there was no clear legal right to justify the immediate restraint, and by doing that, they were, I think, aware of the consequences: that having now a subject of the petition who is out of the country, effectively out of the reach of orders and resolutions of the court, I am pretty sure they are aware of what they can and cannot do within the powers that they have,” he added.
Paolo Duterte also sought a TRO in his petition, but the SC has yet to decide whether to grant or deny the TRO part of his petition.
“The court is a practical court, regardless of how we may think of the court… They will see if their resolutions and orders could still address the issues,” Te said. “I think the initial way they dealt with the petitions was, it gives us a hint as to how they would prefer to handle the situation.”
Point of no return
Are there any chances or scenarios where Duterte might return to the country?
“I think considering the history, our culture here, and the political forces, that’s unlikely. It’s unlikely to happen,” Butuyan said.
Under the Rome Statute, Duterte may apply for an interim release while waiting for trial. But if the judges think there’s a risk of escape, possible obstruction in the probe, and risk of recommitting the alleged crimes, the chamber won’t approve the release. Historically, the ICC has yet to grant interim release to a suspect who faced crimes against humanity.
There may also be a scenario where the Philippine government would request the ICC to return Duterte on the basis of complementarity. This means there’s already a local investigation, so the ICC no longer needs to exercise jurisdiction over the drug war case.
Former ICC judge Raul Pangalangan said he cannot recall a situation where this happened under the ICC, but “it just might happen.” But he noted that it would be a complicated scenario.
“What motion will be filed? And how to justify it in a way that is compatible with the courts having seized jurisdiction over the case? I’m at a loss on that point,” Pangalangan said.
Te, who’s also a criminal law expert, said he too cannot imagine such a scenario, noting that the Philippine government already had a chance to prosecute Duterte locally, but it chose not to. “I cannot see what motion, what document would be filed by the prosecutor and the ICC to say, ‘Okay, we’re giving him back to the Philippines.’ So, at this point, I really cannot.”
There has been no local drug war case against Duterte because of a pile of reasons, including lack of trust on the local justice system by the drug war victims and extremely difficulty in getting drug war evidence. The best option for the victims is still the ICC, where Duterte has no influence over and has already started the process of exacting accountability from the man who started the Philippines’ bloody drug war. – Rappler.com
