First of five parts
NAGA CITY (MindaNews / 28 April) – [In memoriam Pope Francis, the People’s Pope, gratias et requiescat in pace. In these most troubled and uncertain times, we have lost the only world leader who was a viable counterweight to problematic world and national leaders like Trump, Putin, Xi Jinping, Netanyahu, and a certain Duterte – who, even before becoming Philippine President, once cursed the Pope for causing heavy traffic during a 2015 papal visit to Manila (and some of Duterte’s Filipino audience typically laughed) but for which he (Duterte) later apologized.]
Male trado, bene ad judicium teneo (“wrongly surrendered, properly held for trial”). Forgive this attempted coined Latin “maxim-ization” or alternative version of the recently oft-cited legal maxim male captus, bene detentus (“wrongly arrested, properly detained”). This maxim relevant to the issue of validity of the March 11-12, 2025 arrest and surrender of former Philippine President Rodrigo Duterte by the Republic of the Philippines (RP) government to the International Criminal Court (ICC) pursuant to its Warrant of Arrest (WOA) for the Crime Against Humanity (CAH) of Murder for Duterte’s “war on drugs” from November 1, 2011 to March 16, 2019, when the RP was still a State Party to the international treaty which was the 1998 Rome Statute (RS) of the ICC.
Perhaps forgive also this later-day or belated joining the fray of what former Philippine Chief Justice (CJ) Artemio Panganiban described as “Comments long and short, wide and narrow, partisan and neutral on the indictment for the crime against humanity of mass murder, arrest in the Philippines, airlift via a chartered jet to, and detention in, The Netherlands of former president Rodrigo R. Duterte had been essayed, broadcasted, debated, and gossiped ad nauseam.” As if more of that is needed. But this is, among others, a matter of putting one’s views on the record for posterity and to possibly contribute whatever little more to intelligent deliberation, even if these thoughts do not really matter much in the overall scheme of things. I have however benefitted in my study of this matter from several particularly good views expressed or reported in the “free market of ideas” in various media and public discussion platforms, and give them due credit.
A good friend former ICC Judge Raul Pangalangan for his part told me, “To start with, I’m also impressed with whoever unearthed this male captus, bene detentus Latin maxim. Pinoys pa naman really love Latinisms. Hits both the Pinoy’s roots in Catholicism, and his fixation for legal technicality… Precisely, I think that’s the level [the philosophical and moral] at which we should tackle this. The legalistic minutiae does not confront the question of justice whether both for Duterte or his victims. Kaya lang, Pinoys love the ‘effing’ technicalities, and love it when lawyers joust with Latin slogans.” I am almost tempted to say mea culpa.
Male Captus, Bene Detentus
The maxim male captus, bene detentus is said to express the principle that a court may exercise jurisdiction over an accused person regardless of how that person has come into the jurisdiction of that court, unless he/she was seriously mistreated or there otherwise was a gross violation of his/her human rights or that proceeding with the case would violate the fundamental principle of due process of law. It is said to have been consistently applied before international courts (see the Prosecutor vs. Dragan Nikolic 2002 case in the International Criminal Tribunal of the former Yugoslavia) and national courts (see the Ker vs. People of the State of Illinois 1886, Frisbie vs. Collins 1952, and U.S. vs. Alvarez-Machain 1992 cases in the U.S. Supreme Court).
Former Philippine Supreme Court (SC) Justice Adolfo Azcuna believes that the ICC will follow male captus, bene detentus in the ICC Duterte Case, even as Azcuna believes that while “the warrant of arrest is legal. However, his surrender is not.” Yes, call a spade a spade, as you see it. In Azcuna’s view, Duterte’s surrender is not legal because he was not brought before a Philippine court pursuant to the RS Article 59 on “Arrest Proceedings in the Custodial State” that Azcuna says was “brought back” into the Philippine Republic Act No. 9851 (RA 9851) Section 17 second paragraph. This provision allows that “the relevant Philippine authorities may surrender… suspected or accused persons in the Philippines to the appropriate international court” that “is already conducting the investigation” of “a crime punishable under this Act,” such as the CAH of Willful Killing which is equivalent to the CAH of Murder in the RS.
However, a reputable 2008 Liverpool Law Review article on “Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute” has come to “a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.” This despite the 2006 ICC Appeals Chamber Judgment in Prosecutor vs. Thomas Lubanga Dyilo that dismissed the defense challenge to the jurisdiction of the Court because it found, among others, no showing of breaches of the rights of the suspect or the accused in the process of bringing him to justice for his subject war crimes. Though similar in several aspects of the issues of validity in the arrest of the suspect by the custodial State and in its surrender of the same to the ICC within 24 hours, as may be raised in the case of Duterte, what is clear in the case of Dyilo was that after his arrest by Congolese authorities pursuant to a ICC warrant, he was brought to a competent judicial authority, albeit a military court, of the Democratic Republic of the Congo (DRC), before its authorities surrendered him to the ICC. And so, the case of Duterte, particularly on the issue of not being brought promptly before the competent judicial authority in the custodial State the RP, may be a case or issue of first impression for the ICC to this time resolve the status of the male captus, bene detentus doctrine in the ICC. Exspectate (“Abangan”).
The ICC will resolve any challenge to the legality of the arrest and surrender of Duterte using as main parameter the RS itself, its Rules of Procedure and its own jurisprudence, if any, consistent with internationally recognized human rights, as provided in RS Art. 19 on “Applicable Law.” On the other hand, the same subject challenge by the Duterte family habeas corpus petitions currently pending before the SC would be dealt with using as main parameter the Philippine Constitution, also its own jurisprudence, and relevant Philippine laws. For one, the SC does not subscribe to male captus, bene detentus. In Justice Azcuna’s view, “there is a violation and there will be consequences for that violation” to be ruled by the SC. It remains to be seen whether the SC, in case it rules the Duterte arrest and surrender to be illegal, would order the relevant Philippine authorities to remedy this by causing the return or repatriation of Duterte to his Philippine abode (“bring him home”) from ICC custody. Needless to say, the SC has no authority over the ICC, only over relevant Philippine authorities. Two courts, one international, the other national, different parameters, possibly different or the same rulings on the legality of the arrest and surrender of Duterte, either way with likely different consequences, as the parties are different in the two courts. The Philippine government and its relevant authorities are not parties in the ICC Duterte Case, as they are in the SC habeas corpus cases.
It is not “nonsense,” as some say, to raise or discuss the issue of the validity of Duterte’s arrest and surrender. This issue of due process and human rights for one suspect, who happens to be the principal “co-perpetrator” or mastermind, is still important for the legitimacy or acceptability of the whole process of bringing him to justice. Though the ICC may not be bound by whatever SC ruling, this would still carry a certain weight in the overall scheme of things, which is not limited to the legal realm. At the same time, the issue or cause of justice for both Duterte and the thousands of victims of his “war on drugs” is paramount over the validity of his arrest and surrender. This cannot but be, at its essence, the proper or proportionate balancing of their (the two main parties’) respective grievances, taking everything into consideration. For the ICC, Justice Azcuna expects that “They will balance the legality of the arrest with the need to prosecute someone for very serious offenses under international law. And in their view the balance weighs in favor of prosecution. They will prosecute, notwithstanding the violation of the procedure in the surrender.”
And that is only “right, just and necessary,” to use a formulation by UP anthropology professor Michael Tan. Some non-lawyers like him are among those who have a better moral sense of the issue, better than the so-called legal experts, whether lawyers or not. Stated otherwise, justice is too important to be left only to the lawyers. Multi-disciplinary perspectives not limited to law had best bear on the issues, whether procedural or substantive, in the Duterte case.
Before we go deeper into and possibly get lost in the “legalistic minutiae” of the Duterte arrest and surrender validity issue and also the prejudicial more “pivotal issue” of ICC jurisdiction over the Duterte drug war CAH, I wish to also share some of non-lawyer common sense close to me, from my own three-generation family, including a 15-year-old junior high school grandson.
(SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, serving in the Philippine judiciary from 2010 to 2022. He has an A.B. History cum laude from the University of the Philippines (UP) in Diliman in 1975, a Bachelor of Laws from the University of Nueva Caceres (UNC) in Naga City in 1982, and a Master of Laws from the University of Melbourne in 2000. He is a long-time human rights and international humanitarian lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books. Among his recent books are a trilogy on his court work, namely Justice of the Peace: The Work of a First-Level Court Judge in the Rinconada District of Camarines Sur (2015); Drug Cases: A Naga Court’s Practice and Reform Agenda (2022); and Judicial Activist: The Work of a Judge in the RTC of Naga City (2023), all published by the law book publisher Central Books in Quezon City.)