The Senate does not have the power to protect a fugitive and neither does Sen. Ronald ‘Bato’ dela Rosa have parliamentary immunity privilege under the 1987 Charter, international law and human rights experts said a day after the local authorities chased the policeman-turned-politician to arrest him.
Human rights lawyer Dino de Leon, who is also an alumnus of The Hague Academy of International Law, told the Inquirer that the Senate, as an institution, ‘cannot act like a bouncer’ and block the arrest of one of its members ‘just because it wants to.’
‘It has to abide by the law. It is a state institution. It has to respect the prerogatives of the Executive (branch) to serve the warrants of arrest, especially since under (Republic Act No.) 9851, the Executive can directly surrender (dela Rosa) to the International Criminal Court (ICC),’ he said in a phone interview.
He was referring to Section 17 of the 2009 law, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, which states that the Philippine government may surrender or extradite an accused person to the requesting international court that is already investigating or prosecuting the crimes covered by the law.
In fact, the Constitutional provision being invoked by the Senate does not apply to dela Rosa because the Charter protects those who are accused of crimes with a maximum penalty of six-year imprisonment, noted de Leon.
This was also pointed out by human rights lawyer Neri Colemenares, who said that the crimes against humanity of murder being thrown at dela Rosa are punishable by at least 14 years under RA No. 9851, while the same crimes are punishable for a maximum of 30 years in the ICC.
‘Clearly, therefore, (dela Rosa) does not fall within the immunity privilege provided in the Constitution even if the Senate is in session,’ Colmenares said in a statement.
‘A warrant of arrest may therefore be served against him even inside the Senate just like the warrant that was served to then Sen. Leila de Lima and Sonny Trillanes who were both arrested in the Senate premises,’ he added.
Trillanes was arrested for rebellion while inside the Senate premises in 2018, while de Lima in 2018 was held in the Senate for one night before eventually surrendering to authorities the next day.
In fact, the Constitutional provision being invoked by the Senate does not apply to dela Rosa because the Charter protects those who are accused of crimes with a maximum penalty of six-year imprisonment, noted de Leon.
This was also pointed out by human rights lawyer Neri Colemenares, who said that the crimes against humanity of murder being thrown at dela Rosa are punishable by at least 14 years under RA No. 9851, while the same crimes are punishable for a maximum of 30 years in the ICC.
‘Clearly, therefore, (dela Rosa) does not fall within the immunity privilege provided in the Constitution even if the Senate is in session,’ Colmenares said in a statement.
‘A warrant of arrest may therefore be served against him even inside the Senate just like the warrant that was served to then Sen. Leila de Lima and Sonny Trillanes who were both arrested in the Senate premises,’ he added.
Trillanes was arrested for rebellion while inside the Senate premises in 2018, while de Lima in 2018 was held in the Senate for one night before eventually surrendering to authorities the next day.
Colmenares pressed the Senate to adhere to the legal processes as it is not bound to decide on the legality of Dela Rosa’s arrest and prevent the implementation of an arrest warrant.
Dela Rosa, the chief implementer of the two-pronged war on drugs, is being accused in the International Criminal Court (ICC) of crimes against humanity of murder for the killing of at least 32 people from 2016 to 2018.
He is the first ‘co-perpetrator’ who the ICC’s Pre-Trial Chamber (PTC) I wants to have arrested as it also successfully brought former President Rodrigo Duterte to trial for his own murder charges in The Hague-based tribunal.
According to the Nov. 6 arrest warrant reclassified as public only on Monday, the PTC I said it found reasonable grounds to believe that dela Rosa, a former Philippine National Police (PNP) chief during the Duterte administration, is ‘criminally responsible’ for being an indirect co-perpetrator in the drug war killings and that ‘all elements (were) met’ in accusing him of murder.
‘The Chamber finds that, due to Mr. dela Rosa’s role and positions held during the time of the alleged attack pursuant to article 7(1) of the Statute, including as chief of the Davao Police and subsequently as chief of the (PNP), he necessarily knew about the operations and their scope,’ read part of the 16-page arrest warrant.
‘Indeed, the material before the Chamber shows that his contributions to the common plan furthered the widespread and systematic attack directed against all persons designated as involved in criminal activities, especially drug-related ones, and, based on his own public statements, that he intended his actions to be part of the alleged attack against the civilian population,’ it added.
The chamber cited 14 killing incidents out of the total 35 encounters presented by the prosecution to serve as a ‘sample’ of the alleged crimes.
The incidents involved the killing of ‘no less than 32’ individuals, who were described as alleged thieves or criminals who may be involved in drug-related activities.
‘Even though the Chamber only assessed 14 of the incidents, this representative number already shows that there was a course of conduct involving the commission of multiple acts against a civilian population on the territory of the Philippines,’ noted the PTC I, adding that the number may increase at the later stages of the proceedings based on the outcome of the prosecution’s probe.
The brutal acts, it noted, were committed in various cities or towns nationwide and by different government entities in adherence to a policy that supposedly aims to deter criminality.
Because Dela Rosa refused to recognize the ICC and threatened ICC investigators in his public remarks, the PTC I said his arrest was ‘necessary to ensure his appearance before the court.’
‘He also appears to have issued threats to ICC investigators, and fueled disinformation campaigns in the Philippines,’ it said, adding that such actions pose risks to the safety of witnesses and victims.
In ordering the arrest of dela Rosa, the PTC I ruled that the existence of an arrest warrant, initially classified as secret, may be disclosed to governments, international organizations or ‘competent persons.’
This will also apply to the document of the prosecution’s application for an arrest warrant, it added.
The chamber also allowed the Registry, the administrative arm of ICC, to ‘prepare a request for cooperation seeking the arrest and surrender of Mr. Dela Rosa,’ should the prosecution express such an approach for the warrant to be served.
A request for provisional arrest, which should contain the needed information and documents, may also be issued by the Registry.
The PTC I’s decision to unseal the arrest warrant, which has been in existence for six months already, came a few hours after agents of the National Bureau of Investigation (NBI), along with former Sen. Antonio Trillanes IV, showed up outside of the Senate building to arrest dela Rosa.
The former PNP chief appeared in Senate’s Monday session to cast his vote and secure a slim majority win on seating Sen. Alan Peter Cayetano as the new Senate president, replacing Sen. Vicente ‘Tito’ Sotto.
Just a few days after rumors of a looming arrest circulated in November, the ICC announced that it was requiring arrest warrants or summons, including applications for them, to be kept under seal, or to remain confidential from the public.
The amendment to the Regulations of the Court, which took effect on Nov. 10 last year, aims to standardize the process in seeking an arrest warrant or summons for persons to appear by the Office of the Prosecutor.
However, ICC chambers have the discretion, on a case by case basis, when to lift the confidential nature of the sealed document. Triggers may include the prevention of the commission of crimes, interruption of a criminal conduct, or to widen opportunities for a successful arrest of the accused.