FOLLOWING THE ARREST of former President Rodrigo Duterte by the International Criminal Court (ICC), many must be wondering whether or not the Philippine government did the right thing, for which petitions were filed questioning its constitutionality.
According to former chief presidential legal counsel Salvador Panelo, the arrest that was made by the country’s top generals in itself is illegal even as he claimed that there was no warrant presented when Duterte was accosted at the Ninoy Aquino International Airport (NAIA) Terminal 3 on the morning of March 11.
From NAIA, Duterte was taken to the Villamor Air Base where Criminal Investigation and Detection Group (CIDG) chief Major Gen. Nicolas Torre later in the afternoon officially informed the former President that he is being arrested by virtue of an arrest warrant for crimes against humanity issued by the ICC.
Panelo said what the police did in the morning of March 11 could qualify as “kidnapping,” a serious crime under existing Philippine laws.
Panelo further accused the PNP of depriving Duterte of legal representation as dozens of policemen prevented the former president’s immediate family members and lawyers from seeing him – not even his daughter, Vice President Sara Duterte.
Less than an hour before midnight of the same day, Duterte was flown to The Hague where the ICC headquarters is located.
LEGAL REPRIEVE
The following day, Panelo represented the former president’s youngest daughter Kitty at the Supreme Court. He, however, did not file a petition to question the legality of the arrest or the ICC warrant.
He instead filed a petition for “writ of habeas corpus,” before the SC to seek the return of Kitty’s father who was arrested and flown to the ICC in the Netherlands over crimes against humanity.
Habeas corpus is a judicial jargon which means “to produce the body” – a legal remedy usually filed whenever activists are arrested, abducted, or missing.
The petition specifically tagged the likes of Executive Secretary Lucas Bersamin, Justice Secretary Jesus Crispin Remulla, Philippine National Police chief General Rommel Francisco Marbil, and CIDG’s main man, Major General Torre, the same police official who stormed the Kingdom of Jesus Christ compound in Davao City and arrested Duterte’s former presidential spiritual adviser Apollo Quiboloy.
SC TO THE RESCUE
Interestingly, a petition was also filed even before Panelo did. While Duterte was inside the Villamor Air Base, lawyer Israel Torreon, who claims to be the legal representative of the former President, along with Senator Ronald Dela Rosa, asked the Supreme Court to issue an order (TRO) to the PNP to release the former President amid the absence of an arrest warrant.
Torreon insisted that a “red notice” from the International Police Organization (Interpol) where the Philippines remains a member, is not a warrant of arrest – hence, the arrest of the former president is “illegal.”
The petition for certiorari and prohibition filed by Torreon also requested the issuance of a writ of preliminary prohibition and mandatory injunction in relation to Duterte’s arrest.
The petitioners urged the SC to issue a decision declaring and affirming the unconstitutionality of the Philippine government’s cooperation with the ICC, noting the withdrawal of the latter from the Rome Statute, which establishes the ICC, in March 2019.
LEGAL OPINION
Amid doubts on whether or not the arrest was legal or otherwise, no less than former SC Justice Antonio Carpio took upon himself to explain why the Philippine government allowed Duterte to be arrested and flown to The Hague to face an ICC complaint for crimes against humanity even without a trial in his own country.
“Merong batas tayo yung RA 9851, that is the Philippine International Humanitarian Law. Kasi, we adopted the Rome Statute into our law. Nakalagay sa section 17, ‘In the interest of justice the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under its 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 a suspected or accused person in the PH to the appropriate international court if any or to another state pursuant to the applicable extradition laws and treaties,” said the retired magistrate even as he claimed that the petition for TRO against the arrest warrant is moot and academic since Duterte is already out of the country and under the jurisdiction of the ICC.
LEGAL DOCTRINE
Carpio also cited the legal doctrine of “Male Captus Bene Detentus” (which means “wrongly captured, properly detained”) amid claims that no warrant was served during the ex-president’s arrest.
“The principle says na yung tribunal will have jurisdiction, and will continue to have jurisdiction even if the accused is wrongfully arrested because the arrest has nothing to do with the tribunal.”
“If the accused is surrendered to the ICC, the circumstances of his arrest by the surrendering state will not be inquired into,” he added.
President Ferdinand Marcos Jr’s chief legal counsel Juan Ponce Enrile, for his part, clarified that the current legal problem of Duterte is not caused by the Philippine government.
“The current legal problem of the former president is not caused by Philippine laws. His legal problem is caused by laws enforceable by the ICC. It is not correct to blame the Philippine government for the current legal problem of ex-PRRD,” reads his statement.
“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,” Enrile added.
MOOT AND ACADEMIC
Meanwhile, lawyer Ruben Carranza in his capacity as senior associate at the International Center for Transitional Justice, for his part finds the petitions “moot and academic.”
In an interview with television journalist Karen Davila, Carranza said there’s not much SC can do about something that has already transpired – the arrest.
Carranza also belied claims that the arrest was made before the ICC issued a warrant of arrest – “They arrested Duterte based on a warrant that was issued much, much earlier before the arrest was made.”
Citing obtained copies of the ICC document, Carranza said that the warrant was issued sometime in February. It was, however, kept sealed until the day the arrest would be made — if only to protect the witnesses and the people who’d be asked to serve the warrant.
“ICC unseals warrant once it was about to be served, and that has long been the practice of the ICC in many other cases. ICC does that to protect witnesses, they want to protect people who are serving the warrant, to make sure that the warrant would be served, and prevent the subject from fleeing” he added.
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