Crimes against humanity, International Criminal Court (ICC), Interpol, state parties, custodial state, global cooperation: these terms all connote some relation to foreign affairs. In turn, of the three great branches of government, it is to the executive that foreign affairs are principally entrusted. As the Supreme Court consistently stated, the President is the sole organ of foreign relations, the chief architect of foreign policy — the country’s representative in  international affairs.

The executive is uniquely positioned to deal with international incidents, especially when they require urgent action. It has a singular head and a clear chain of command. 

This is in stark contrast with the legislative and the judiciary involving deliberative processes at the core of their functions. While these characteristic ensure that they perform their functions as intended by our Constitution, it is these same traits making them ill-suited for time-sensitive matters characterizing many of the foreign affairs-related emergencies which  states can be faced with.

The executive also has the resources to make crucial decisions in these situations. Armed with both a vast intelligence network and an infrastructure of expertise via the different departments, the Office of the President is able to make informed decisions immediately, if not at least faster, than the judiciary or legislative. 

This is a boon in situations where the decision at hand involves something like the arrest of a former president, which brings with it concerns of national security, destabilization, or even the likelihood of escape and civil unrest. 

Consequently, the courts have traditionally accorded “extreme deference” to presidential decisions concerning matters with an international element. This is not just a matter of practicality, but of political and legal order. The separation of powers requires that the judiciary defer to the executive’s decisions on international affairs, especially when there is little to warrant the former’s immediate interference. 

Domestic law is clear

Of course, this is not to say that the executive is above the law. Our Supreme Court has said that “although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power must still be exercised within the context and the parameters set by the Constitution, as well as by existing domestic and international laws.” (Esmero vs. Duterte G.R. No. 256288, June 29, 2021).

The question of the hour is then obvious. Was former president Rodrigo Duterte’s arrest and subsequent surrender to the ICC lawful?

Our domestic law is clear. Section 17 of Republic Act No. 9851 permits the Philippines to waive its jurisdiction in order to allow an international tribunal to conduct the hearing of any person accused of committing crimes against humanity. It also allows the surrender of the suspected person to the pertinent international tribunal. 

Under international law, since the Philippines already withdrew from the Rome Statute and the ICC as of March 2019, the manner of apprehension provided in that statute no longer applies to the Philippines. It is only the substantive aspect of the Rome Statute — the determination of liability or non-liability of former President Duterte for alleged crimes against humanity — that is still relevant. 

Our Supreme Court ruled in Pangilinan et al. v. Cayetano et al. (G.R. No. 238875) that the ICC “retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date.” The Pangilinan decision refers only to liabilities of charged persons, not to the different technical procedures in the  apprehension of the suspect and his/her transmission to  the ICC.

This is  true independently of the Rome Statute because liability for such crimes is part of customary international law. It is jus cogens, a non-derogable rule. 

What law prohibits

On the legality of arrests, Section 2 of Article III of the 1987 Constitution partly provides that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge.” 

What Section 2 prohibits are unreasonable searches and seizures. There are reasonable searches and seizures — done without a warrant — which do not violate the constitutional edict.  

They are in cases of in flagrante delicto (caught in the act) situation, hot pursuit, and apprehension of a fugitive from justice.  Common sense dictates that, in these instances, an arrest must be made lest the culprit is able to evade justice. The law cannot be applied absurdly by disallowing an arrest despite the frontal commission of an offense. In other words, the arrest is reasonable despite the absence of a warrant.

Should this paradigm also be applied to Duterte’s arrest? Was his seizure at the request of  Interpol reasonable within the contemplation of Section 2, Article III of the Constitution?

The facts at hand seem to support it. There was a warrant issued by the ICC charging Duterte with crimes against humanity. Couple this with the fact that R.A. No. 9851 gives government the authority to surrender suspects to international tribunals. Additionally, the Pangilinan case states that notwithstanding Philippines’ withdrawal from the Rome Statute, liabilities until March 17, 2019 remain, the same liabilities which appear in the ICC’s warrant in this case. 

It seems the Executive had both Legislative and Judicial basis for assisting Interpol and facilitating Duterte’s arrest. To me, the arrest was  reasonable. And this is only if one insists on a domestic basis for legitimizing the arrest. 

In international relations, there are also other compelling factors which go beyond our own borders: considerations of international cooperation, global respectability, pacta sunt servanda (good faith compliance), comity rules, and the continuation of the Philippines’ membership in a civilized community of nations.These are factors beyond the legal which our government, as stewards of our country’s identity, reputation, and sovereignty, cannot  ignore.

Finally, in all these discussions, we should not forget what, or rather who, are most important: the victims of Duterte’s relentless “war on drugs” — the men, women, and children who were systematically and summarily executed, and their families. 

It is no lie to say that our government has failed them over and over. It would be the cruelest irony if the one time the government might actually give them justice is frustrated by an ill-advised move by the judiciary itself.

This matter is with the ICC now. The ICC is a creation of the community of nations, a standing testament to humanity’s shared values, and an enduring reminder that while we may have our differences, there are things that no sovereign state will ever stand for: rampant killings, systemic injustice, pure and utter disregard for the rule of law. People responsible for them must be made accountable. 

Because while this is a matter of international affairs, while all these proceedings will happen in a foreign land, thousands of miles away, the justice it will bring will no doubt make its way back home, to the heart of every Filipino which the Duterte’s “war on drugs” has wronged. – Rappler.com

Mel Sta. Maria is former dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.