SC: No immediate issuance of TRO vs Rodrigo Duterte's ICC arrest
The Supreme Court said the petition filed by former president Rodrigo Duterte and Sen. Ronald "Bato" Dela Rosa to challenge the International Criminal Court's arrest of the former over his alleged crimes against humanity "failed to establish a clear and umistakable right for the immediate issuance of a TRO."
The high court released the statement on Wednesday, March 12, saying it has "directed the respondents to comment on the petition with prayer for TRO and/or writ of preliminary injunction within a non-extendible period of 10 days from notice."
Per the SC, it received the petition for certiorari and prohibition at 4:27 p.m. of March 11. Certiorari allows a court to review a decision to ensure it wasn't based on an abuse of discretion.
The case was filed against Executive Secretary Lucas Bersamin, Justice Secretary Jesus Crispin Remulla, Interior and Local Government Secretary Jonvic Remulla, Philippine National Police (PNP) Chief General Rommel Francisco Marbil, PNP-Criminal Investigation and Detection Group Director General Nicolas Torre III, Solicitor General Menardo Guevarra, Immigration Commissioner Norman Tansingco, Foreign Affairs Secretary Enrique Manalo, and Armed Forces of the Philippines Chief of Staff General Romeo S. Brawner, Jr.
Duterte and Dela Rosa also requested a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction, and are seeking to prevent the respondents from "facilitating, assisting, or cooperating with the ICC in any investigation related to the Philippine government's anti-drug campaign."
"They also ask the SC to enjoin respondents from enforcing or assisting in the enforcement of any ICC-issued warrants or red notices and to suspend all forms of cooperation with the ICC while the case is pending," the statement read.
The two requested the high court to "declare that the Philippine government's withdrawal from the Rome Statute on March 17, 2019 effectively terminated the ICC's jurisdiction over the country and its nationals."
The SC stated that they conducted a "special raffle" regarding the case, given its significance and upon the instructions of Chief Justice Alexander Gesmundo.
'ICC has no jurisdiction'
According to Duterte and Dela Rosa's petition, the ICC's claim of jurisdiction is "patently erroneous and violates the sovereign prerogatives of the Republic of the Philippines."
They argued that the Rome Statute, which is the founding treaty of the ICC, explicitly provides that a State Party's withdrawal takes effect one year after formal notification and that the Court retains jurisdiction only over matters that were already "under consideration" before the withdrawal becomes final.
"A plain reading of the Statute confirms that a mere preliminary examination—which is a unilateral and discretionary prosecutorial activity, rather than a judicial process—does not constitute a 'matter under consideration' by the Court," they said.
They claimed that no authorization had been issued by the Pre-Trial Chamber regarding the Philippines' case before the country's withdrawal became effective on March 17, 2019.
"Therefore, any subsequent investigative actions taken by the ICC—whether through continued preliminary examination, requests for cooperation, or the issuance of arrest warrants—constitute an unlawful assertion of authority beyond its jurisdiction," the petition read.
It also stressed how it was "equally alarming" that certain government agencies and officials in the Philippines have allowed ICC investigators and prosecutors into the country, facilitated their actions, and even signaled willingness to enforce ICC-issued arrest warrants.
"Such cooperation constitutes an abdication of constitutional duties and an outright violation of the principles of national sovereignty and non-intervention under international law," the document stated.
"Any cooperation by Philippine authorities with Interpol on ICC-related matters constitutes a grave abuse of discretion and an unconstitutional infringement on national sovereignty," it added.
However, in their arrest warrant, the ICC insisted that the case against Duterte still falls within their jurisdiction despite the Philippines' withdrawal in 2019.
"The Chamber recalls, that while the Philippines' withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party from 1 November 2011 up to and including 16 March 2019," the court explained.
Since Duterte's alleged crimes took place between November 2011 and March 16, 2019, the ICC can still decide on the case.
Duterte's arrest
Duterte was arrested on Tuesday, March 11. It had been years in the making, beginning in October 2016 when then-ICC prosecutor Fatou Bensouda said they were watching the Philippines closely as killings under the Duterte administration were on the rise just four months since he assumed office.
As stated in the warrant obtained by The Philippine STAR, he was arrested for murder, torture, and rape—which are part of the 15 forms of crimes against humanity under the Rome Statute—in connection with his administration's bloody war on drugs called Oplan Tokhang that saw the execution of thousands of suspected drug peddlers, users, and small-time criminals.
Duterte was brought to the Villamor Air Base upon arriving at the Ninoy Aquino International Airport from Hong Kong.
He left the country at 11:03 p.m. of the same day and is now en route to The Hague, Netherlands, where he would be tried by the ICC. (AFP)
