THE inconsistency in the government’s position in regard to its supposed non-cooperation with the International Criminal Court (ICC) and the enforcement of its arrest warrant issued against Senator Ronald ‘Bato’ Dela Rosa should justify judicial intervention and the grant of interim relief in favor of the senator.
This argument was raised by the legal team of Dela Rosa headed by lawyer Israelito Torreon in their reply to the comment submitted by the Office of the Solicitor General (OSG) in connection with their series of manifestations filed before the Supreme Court.
In their reply, Dela Rosa reiterated their plea for the Court to immediately issue a temporary restraining order and/or a status quo ante order prohibiting respondents Department of Justice (DOJ), Department of Interior and Local Government (DILG), National Bureau of Investigation (NBI), Philippine National Poliee (PNP), Philippine Center for Transnational Crime and former senator Antonio Trillanes IV from implementing the supposed ICC arrest order against the senator.
In detailing the inconsistency in the government’s stance on cooperation and enforcement of ICC’s arrest order, Dela Rosa pointed out that President Marcos Jr. himself had declared that the government would not assist the foreign tribunal ‘in any way, shape or form,’ and would ‘not lift a finger’ to help any of its investigation into illegal drug war of the Duterte administration.
The senator also cited previous statements by Executive officials that an ICC warrant cannot be enforced in the country unless it is coursed through the Interpol.
In contrast to these previous statements, Dela Rosa noted that Justice Secretary Fredderick Vida issued a statement last May 15 confirming the existence of a valid arrest warrant and that the government ‘will definitely submit to the request of the ICC.’
He also noted the attempt of the NBI last May 11 to serve the arrest order inside the Senate premises.
Even the OSG admitted in its comment submitted last Saturday that the arrest warrant can be implemented even without an Interpol or diffusion order against the senator.
Solicitor General Darlene Berberabe argued that the President Marcos Jr. can exercise the option to surrender Dela Rosa under Section 17 of Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) being the chief architect of the country’s foreign policy.
She further argued that the decision to recognize an ICC warrant and the surrender of an individual is a political question which belongs to the discretion of the President as the chief architect of foreign policy.
‘The Executive cannot litigate non-cooperation before the Court while operationally cooperating outside the Court. It cannot disclaim ICC obligation in pleadings, then use an ICC warrant as the practical basis for domestic arrest,’ Dela Rosa pointed out.
‘It cannot say there is no enforceable ICC process to avoid judicial restraint, but treat the same alleged process as sufficient to seize a citizen. This contradiction bears directly on ripeness, candor, grave abuse of discretion, and the need for immediate injunctive relief,’ Dela Rosa added. Furthermore, Dela Rosa said Berberabe’s comment failed to answer the main constitutional question raised in his manifestations: ‘What specific provision of Philippine law authorizes the Executive Department to arrest, detain, or facilitate the surrender of a Filipino on the basis of an ICC warrant, without a Philippine court-issued warrant, without surrender or extradition proceedings prescribed by domestic statute, and after the Philippines’ effective withdrawal from the Rome Statute on March 17, 2019?’
He noted that the Philippines’ withdrawal from the Rome Statute became effective on March 17 2019.