Supreme Court denies ex-President Duterte’s TRO request
DAVAO CITY (MindaNews / 13 March) —The Supreme Court denied former President Rodrigo R. Duterte’s request for a temporary restraining order to prevent the Philippine government from cooperating with the International Criminal Court.
The ICC had previously ordered Duterte’s arrest on charges of murder as a crime against humanity.
The High Court announced on Wednesday that Duterte and his co-petitioner Senator Ronald Dela Rosa failed to establish a clear and unmistakable right for the immediate issuance of a TRO.
It directed respondent government officials to comment on the petition within 10 days from notice.
Other reliefs prayed for included Duterte’s immediate release from unlawful detention, a cease-and-desist from recognizing or enforcing ICC-issued warrants within Philippine jurisdiction and prohibiting any attempts to ship Duterte out of the country.
The petition was filed at 4:27 p.m. last Tuesday when the former Philippine leader was held at the Villamor Airbase. At 11:17 p.m. the same day, Duterte’s counsels filed another urgent manifestation asking the Court to grant a TRO.
Authorities arrested Duterte upon arriving at the Ninoy Aquino International Airport (NAIA) from Hong Kong where he and his daughter, Vice President Sara Duterte, attended the “Pasasalamat kay FPRRD” (A Thanksgiving for former President Rodrigo R. Duterte) organized by their supporters last Sunday.
Hours after being placed under police custody, the arrested former Philippine leader was flown to The Netherlands via Dubai on board a chartered plane, a Gulfstream G550 (RP-C5219), that left Manila at 11:03 p.m.
Three petitions for the writ of habeas corpus dated March 11 were filed by Duterte’s children, Mayor Sebastian “Baste” Duterte, Davao City’s 1st District Rep. Paolo “Pulong” Duterte, and Veronica “Kitty” Duterte on March 12.
The petitions questioned the circumstances surrounding the lawfulness of Duterte’s detention and the procedure in effecting the ICC-issued warrant of arrest and reiterated that the international court no longer has jurisdiction over the Philippines, following the country’s withdrawal.
According to the Supreme Court, the writ of habeas corpus is a “speedy and effectual remedy to relief persons from unlawful restraint.”
On 17 March 2018, then-President Duterte notified the United Nations Secretary-General that the Philippines, an ICC State Party since 1 November 2011, was withdrawing from the Rome Statute. The withdrawal became effective on 16 March 2019, a year after the Secretary-General received it.
On this basis, Duterte repeatedly said he does not recognize the international court as it has no jurisdiction over the Philippines.
Sebastian stressed that the “detention and attempted transfer of Duterte” constitute a grave violation of his fundamental rights under the 1987 Constitution, the principle of due process, and the lawful sovereign authority of the Philippine judicial system.
The counsel of Paolo argued, among others, that since the Philippines’ withdrawal from statute became effective, the international court’s act of authorizing the ICC prosecutor to proceed with preliminary investigation on the drug war is “patently unconstitutional and violative of the sovereign prerogative of the Philippines to withdraw from the said treaty.”
Meanwhile, Veronica’s counsel argued that another reason why the ICC could not take jurisdiction over Duterte was because the ICC could not supplant the Philippines’ criminal justice.
Invoking the “principle of complementarity,” they contend that the ICC can only exercise jurisdiction when the “State is unwilling or unable genuinely to carry out the investigation or prosecution.”
The country’s legal experts, however, believe that based on the “principle of complementarity,” the ICC should exercise its jurisdiction over Duterte.
Prof. Michael T. Tiu Jr., assistant professor of the University of the Philippines-College of Law, said in an interview with ANC on Tuesday that under this principle, the ICC would intervene if the State is “unwilling or unable to investigate or prosecute.”
“Binigyan tayo ng pagkakataon pero ang response ng estado ay mag withdraw. So, ngayon walang pagkakataon na gawin yan (We were given a chance but the state’s response was to withdraw. So, now there is no chance to do that),” he said.
Former Bayan Muna Representative Neri Colmenares, speaking during the “’Unsay Mapalit sa imong 20 pesos?’: A Pre-SONA Forum” at the Ateneo de Davao University (ADDU) July last year, said that jurisdiction of the ICC over Duterte’s drug war should never be an issue.
Citing Article 17 on Issues of Admissibility under the Rome Statute, Colmenares said that a case is inadmissible before ICC if the case is being investigated or prosecuted by the State, unless the State is unwilling or unable to investigate or prosecute.
Contrary to the claims of the allies of the former President, Colmenares said the ICC has jurisdiction over the drug war of the previous administration since Duterte cannot be prosecuted “even if the justice system is working,” owing to his presidential immunity from all suits.
In a statement on March 12, the ICC maintained that the ICC retains jurisdiction over crimes allegedly committed in the Philippines while the country was a State Party to the Statute.
It said that the Pre-Trial Chamber I “found reasonable grounds to believe that [the former President], jointly with and through other persons, agreed to kill individuals they identified as suspected criminals or persons having criminal propensities, including but not limited to drug offenders, initially in Davao and subsequently throughout the country.”
The Chamber found that there was an attack directed against a civilian population under an organizational policy while Duterte was the head of the Davao Death Squad (DDS), and under a State policy while he was the President of the Philippines.
“There are reasonable grounds to believe that this attack was both widespread and systematic: the alleged attack took place over a period of several years and resulted in thousands of deaths. In the arrest warrant, the Chamber focused on a sample of alleged incidents to facilitate its analysis,” it added.
Before he was elected President in 2016, Duterte served as mayor from 1988 to 1998, representative of the first district from 1998 to 2001, mayor from 2001 to 2010, vice mayor from 2010 to 2013, and mayor from 2013 to 2016. Last Oct. 7, Duterte filed his certificate of candidacy for mayor with his youngest son, incumbent Mayor Sebastian Duterte, as vice mayor.
The Chamber stated that a hearing would be scheduled in due course for Duterte’s initial appearance before the Court. (Antonio L. Colina IV / MindaNews)
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