Male trado
That is, “wrongly surrendered,” as distinguished from male captus (“wrongly arrested”).We go by Justice Azcuna’s view that basically Duterte’s arrest (not just the ICC WOA) was legal, but his surrender to the ICC was not, for violation of the RS Art. 59 procedure. We now go into the “legal minutiae.” Though RS Art. 59 is titled “Arrest proceedings in the custodial State,” it also covers interim release and surrender. We now hereunder quote its relevant provisions: (underscoring supplied)
1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9 [International Cooperation and Judicial Assistance].
2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).
xxx
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.
Note that while par. 1 refers to “A State Party,” the rest of Art. 59 refers to “the custodial State” which need not be a State Party – like the RP status at the time of the Duterte arrest and surrender. Note also that while par. 2 refers to “the competent judicial authority,” the succeeding paragraphs refer to “the competent authority” which need not be judicial, and may thus be executive or administrative.
There is really no issue about the legality of the ICC WOA. There may be some issue about the legality of RP cooperation with the ICC in the execution of that WOA and in the surrender of Duterte to the ICC. We will deal with the cooperation issue shortly below. But the RP execution of the ICC WOA for Duterte, particularly the arrest itself, as televised, appears to be “in accordance with the proper process… in accordance with the law of that State [the RP].”Duterte, when placed under arrest by PNP-CIDG Director Police Major General Nicolas Torre III, was informed of the ICC WOA and its charge against him, “informed of the nature and cause of the accusation against him,” and was read the usual Miranda rights. That constituted the Duterte arrest upon his Hongkong flight’s arrival at the NAIA airport in Manila in the morning of March 11. But thereafter, contrary to the above-quoted Art. 59(2), Duterte was definitely not “brought promptly before the competent judicial authority” to determine the therein indicated three matters pertaining to his arrest. After a few hours in the airport VIP lounge where Duterte was held under arrest, he was brought instead to Villamor airbase where he was held until close to midnight of the same day March 11 for his special RP chartered transfer flight to the Netherlands for surrender to the ICC in The Hague the following day March 12.
For that surrender of Duterte to the ICC, the RP invokes RA 9851, Sec. 17 second paragraph:(underscoring supplied)
In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this 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 suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.
Note that this provision speaks only of “surrender” not of “arrest.” But of course surrender is premised on having physical custody of the “suspected or accused persons in the Philippines” who must have been arrested or detained here.
Note further that the same provision does not itself require, like the RS Art. 59(2) does, that suspected or accused persons in the Philippines “shall be brought promptly before the competent judicial authority” before “the relevant Philippine authorities” surrender them “to the appropriate international court. “The RP also currently asserts that, having withdrawn from the RS, it is no longer a State Party with the obligation to cooperate with the ICC or to apply the RS, and that there was no need for a court order since Duterte was being surrendered to the ICC, not extradited to the Netherlands. No less than President Marcos Jr. stated, right after the chartered transfer flight carrying Duterte left the country, that the RP cooperation was with the International Criminal Police Organization (INTERPOL) through which the ICC WOA was coursed, but not with the ICC itself.
YET, one relevant Philippine authority, the executive Department of Justice (DOJ), through Prosecutor General Richard Anthony Fadullon, issued an undated Certification that: (boldface in the original, underscoring supplied)
The arrest was carried out in accordance with Philippine laws and then provisions of Part 9 of the Rome Statute. The following determinations were made by the Department of Justice, as competent authority of the custodial State, upon presentation of the arrested individual:
1. The warrant of arrest issued by the ICC applies to Rodrigo Roa Duterte;
2. The arrest was conducted in compliance with due legal process.
3. The rights of the arrested person were duly observed and respected throughout the proceedings.
The custodial state has determined to deliver Rodrigo Roa Duterte to the ICC, in accordance with Article 59(4) of the Rome Statute. In making this determination, the custodial State considered the gravity of the alleged crimes, the absence of urgent and exceptional circumstances justifying interim release, and the necessity of ensuring that the Republic of the Philippines fulfills its duty to surrender the person to the ICC. Moreover, sufficient safeguards were in place to prevent any risk of escape or interference with the proceedings.
In accordance with Article 59(7), the arrested individual shall be immediately transported to The Hague and placed in the custody of the International Criminal Court.
This certification is issued for record and compliance purposes.
This DOJ Certification is therefore an authoritative record of RP cooperation with the ICC, no mention even of the INTERPOL, and more than that, purported “compliance” with the RS, as it no less cites Part 9 and Articles 59(4) and (7). The RP or at least the executive department is estopped or bound by this DOJ Certification. The problem with this “compliance” is that the DOJ “as competent authority of the custodial State,” is not “the competent judicial authority” to whom “A person arrested shall be brought promptly before” under Art. 59(2) to determine the three indicated matters regarding his/ her arrest.
A judicial authority is presumably required to check and balance the executive authorities’ execution of the ICC WOA and surrender of the arrested person to the ICC. Stated otherwise, the executive department which executed this cannot be expected to fairly or independently check itself about its own execution. The DOJ appears to have arrogated unto itself the status of “the competent judicial authority.” It is more logical that “the competent judicial authority” in RS Art. 59(2) for determining the propriety of the arrest is the same as “the competent authority” in the immediately succeeding Art. 59(3) and (4) for considering any application for interim release pending surrender. And even if “the competent authority” referred to in Art. 59(3) and (4) can be assumed by the DOJ, there is no showing that Duterte was accorded the opportunity to exercise “the right to apply… for interim release pending surrender.”
As for the DOJ’s certification of “upon presentation of the arrested individual” to it, it appears that Duterte was not “brought promptly before” the DOJ but rather that it was the DOJ, as part of the arresting team, that brought itself promptly before Duterte while he was held at the airport VIP lounge after his arrest. “The relevant Philippine authorities” led by President Marcos Jr., Executive Secretary Lucas Bersamin (a former CJ) and Justice Secretary Jesus Crispin Remulla, though obviously aware of RS Art. 59(2), conceivably made a judgment call to no longer bring Duterte before “the competent judicial authority,” whether this be the SC or a Regional Trial Court, the latter having “original and exclusive jurisdiction” over RA 9851 cases, including for the CAH of Willful Killing (or Murder). They instead opted, as the DOJ certification shows, to go for the DOJ “as competent authority of the custodial State” for “compliance purposes” with the RS Art. 59. But does this pass muster as substantial compliance with the RS? Abangan again the ICC and SC rulings, if any, on this
Especially in the SC, would the old 1989 Marcos vs. Manglapus ruling, as pointed out by Atty. Bryan Dennis Gabito Tiojanco now a project associate professor at the University of Tokyo, justify that executive department judgment call to no longer bring Duterte before a local court as a RS procedural safeguard for persons arrested pursuant to an ICC WOA? Just like the WOA against Duterte noted that he, “even though no longer the President of the Philippines, appears to wield considerable power. Mindful of the resultant risk of interference with the investigations…,” was there an executive department risk assessment pointing to Duterte’s “capacity to stir trouble”? This appears to be validated by the immediate and continuing blowback by his supporters against his arrest and surrender to the ICC. From the Manglapus case ruling, Atty. Tiojanco notes:
… And considering “the capacity of the Marcoses to stir trouble” due to “the fanaticism and blind loyalty of their followers in the country,” then President Aquino could use her [residual presidential] powers as protector of the peace to prevent their return. Ironically, the same argument may be made to justify why Duterte was hastily surrendered to the ICC. He has the capacity to stir trouble by rallying his loyal followers in the country (imagine if his plane had landed in Davao, not Manila). The decision to forego bringing him to court might have been necessitated by this extraordinary circumstance.
“This case is unique,” said the court in Marcos v. Manglapus. “It should not create a precedent.” The same can be said about Duterte’s arrest and surrender. Ordinarily, citizens should enjoy stronger due process safeguards before they are surrendered to an international tribunal such as the ICC.
The Manglapus case ruling, even if “unique… should not create a precedent,” may still be persuasive to the SC, but not necessarily to the ICC, in ruling on the legality of Duterte’s arrest and surrender.
On the executive department’s “decision to forego bringing him to court” promptly after his arrest and before he “was hastily surrendered to the ICC” to avoid the complications from his “capacity to stir trouble by rallying his loyal followers in the country” as “necessitated by this extraordinary circumstance,” it may not be amiss to note that in the Dyilo Case in the ICC, the whole RS Art. 59 procedure, including bringing Dyilo promptly before “the competent judicial authority,” albeit a military court, in the DRC, and finally surrendering him to the ICC, was complied with by the relevant DRC authorities all within 24 hours. So, it can be done. But of course, Dyilo was apparently not a Duterte in terms of having residual ex-presidential power with “the capacity to stir trouble.”
Still in the SC, for possible analogous consideration would be Philippine criminal law, particularly the Revised Penal Code’s famous Art. 125 on “Delay in the delivery of detained persons to the proper judicial authorities,” where detention is “for some legal ground.” And in RA 9851 itself, its Sec. 16 provides for the “Suppletory Application of the Revised Penal Code and Other General or Special Laws.” This may partly fill the noted gap in Sec. 17 of not providing that suspected or accused persons in the Philippines “shall be brought promptly before the competent judicial authority” before “the relevant Philippine authorities” surrender them “to the appropriate international court.” And Sec. 15 on “Applicability of International Law” may yet also help fill that gap.
(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.)