NAGA CITY (MindaNews / 13 November) — Republic Act No. 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, does not need an Implementing Rules and Regulations — contrary to the contention of the legal counsel of Senator Ronald “Bato” dela Rosa, in view of his possible surrender or extradition by the Philippine government under Section 17 thereof to the International Criminal Court pursuant to its warrant of arrest and surrender for Dela Rosa as a charged co-perpetrator in the same Crimes Against Humanity of Murder case there of former President Duterte for his “drug war.” Dela Rosa’s counsel further contends that to surrender or extradite Dela Rosa under Sec. 17 without an IRR would be unconstitutional purportedly for depriving him of liberty without due process of law, the IRR being the legal instrument of that due process.
Before dealing with this issue of procedural due process and safeguards for a RA 9851 Sec. 17 surrender or extradition of Dela Rosa to the ICC, it must be pointed out that RA 9851 has already been in operation and been applied since its effectivity in early 2010, or for more than 15 years already, even without an IRR. RA 9851 has been reaffirmed and applied several times by the Supreme Court. In Pangilinan vs. Cayetano (2021), in process of effectively upholding the Philippine withdrawal from the Rome Statute of the ICC, the SC reaffirmed the fallback value of RA 9851. There have also already been convictions and acquittals for violations of RA 9851 at the Regional Trial Court level.
These judicial affirmatory rulings on and applications of RA 9851 were done even without an IRR. The truth of the matter is that the legislative intent of RA 9851 was to no longer require an IRR, otherwise it would have been provided for. As it is, a number of our major criminal laws, most notably the Revised Penal Code, the Anti-Graft and Corrupt Practices Act, and the Anti-Plunder Act, do not provide for an IRR. Even without an IRR, these are laws that can and must be implemented.
RA 9851’s constitutionality has never been questioned in the SC so far. We may sooner or later see it being questioned there in case not only of a RA 9851 Sec. 17 surrender or extradition of Dela Rosa to the ICC, but also in a possible later RA 9851 case for the Crime Against Humanity of Murder that may yet be filed, as ought to be, in the RTC against perpetrators of the Duterte “drug war,” whether or not they are haled to the ICC.
Dealing now with the issue of procedural due process and safeguards, in the absence of an IRR, for a RA 9851 Sec. 17 surrender or extradition of Sen. Dela Rosa to the ICC, RA 9851 itself provides the recourse for this. Its Sec. 10 provides for “Applicability of International Law.” This would include the Rome Statute whose Art. 59 on “Arrest proceedings in the custodial state” (which also covers interim release and surrender) is most relevant to the Philippine government’s residual obligation, despite its withdrawal from the Rome Statute, to cooperate with the ICC. Such cooperation entails compliance with the Rome Statute’s relevant provisions.
The Rome Statute’s Art. 59(2) provides that “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.” The “competent judicial authority” can be an RTC which has original and exclusive jurisdiction over crimes against humanity, or it can and would likely be the SC, in this prominent case of first impression. We have laws on arrest and rights of arrested persons. No need for an IRR.
(SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, Camarines Sur. He is a long-time human rights and international humanitarian lawyer; legislative consultant and legal scholar; and author of a number of books, including a trilogy on his court work and practice: Justice of the Peace (2015), Drug Cases (2022), and Judicial Activist (2023), all published by the lawbook publisher Central Books, Inc., Quezon City. As a civil society IHL advocate, he was the principal drafter of the “IHL Bill” which became RA 9851, sometimes called the “IHL Law.”)