The Department of Justice (DOJ) is waiting for the Supreme Court’s (SC) decision on the petitions challenging the March 11 arrest of former president Rodrigo Duterte before acting on a possible arrest order that may be issued by the International Criminal Court (ICC) against Sen. Ronald “Bato” M. Dela Rosa.

In the afternoon of March 11, Dela Rosa and Duterte filed with the SC a petition which sought the issuance of a temporary restraining order (TRO) or writ of preliminary injunction against the former president’s arrest.

Thereafter, several other petitions were filed with the SC by Duterte’s children, also against the arrest and the turnover of the former present to The Hague in Netherlands where is now detained on charges of crimes against humanity in relation to the illegal drugs war during his term as mayor Davao City and early years of his presidency.

All the SC petitions are still pending resolution.

“What we are simply saying is that, as far as the department is concerned, we would opt to have that resolution from the Supreme Court so that once and for all, at least it could be decided whether the first course of action undertaken by the government when the arrest of the former president was undertaken in March would be the correct course of action or if there is any other option,” said DOJ Prosecutor General Richard Anthony D. Fadullon said during a press briefing on Tuesday, Nov. 11.

“If the court says it's extradition, then we will have to abide by the ruling of the Supreme Court,” Fadullon said.

Fadullon was part of government authorities who took custody of Duterte on March 11 based on the arrest warrant issued by the ICC and coursed through the International Criminal Police Organization (Interpol).

“But since the petitioner in that particular case is Sen. Bato Dela Rosa himself, we find it best that we also wait for the resolution of the Supreme Court on the matter,” he added.

He also said that the DOJ has been following up from the SC as to when the resolution on the matter will be released.

“Now, we have been told to just wait,” said Fadullon who added: “It's just a matter of time before the Supreme Court probably would come up with its own resolution.”

In the meantime, Fadullon said “we're still studying the legal options that are available to the State as far as implementing the warrant, if issued, and how it should be implemented.”

DOJ Chief State Counsel Dennis Arvin L. Chan pointed out that under Republic Act (RA) No. 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, “the State has two options available to it, and these are extradition or surrender.”

Of the two options, Chan said “surrender” is the faster and more practical choice.

Chan explained that the extradition process could take months since it will undergo DOJ evaluation and court hearings before determining whether the extradition request should be granted or not.

“Whereas surrender, very definitely, shortens the process time,” he also said.

Thus, he pointed out: “The State is seriously studying all options available to it. We are not closing the door on extradition or surrender per se.”

At the same time, Chan refuted the claims of Dela Rosa’s legal counsel, Israelito Torreon, that the option of surrender under RA 9851 cannot be implemented because it is not a self-executing provision.

He said: “It is the position of the Department that RA 9851 was actually the State's response to its becoming a member of ICC. So, by virtue of the Philippines then acceding to the ICC, Congress intended the provisions under RA 9851 to be self-executing. So, Section 17 which says that the State or in the interest of justice, the State has the option to either do extradition or surrender, that in itself is already self-executing.”

The DOJ conducted the briefing in response to reports that the ICC has issued an arrest order against Dela Rosa.

Fadullon said that the arrest order, if issued by the ICC, has to be coursed through the Department of Foreign Affairs and copies sent to the Philippine Center for Transnational Crimes (PCTC).

“Then that's the only time transmittals would be made to the relevant agencies or law enforcement agencies directed to implement,” he added.

Though Dela Rosa previously said that he will seek Senate protection if the ICC arrest order will be issued, Fadullon reminded: “There is no such thing as immunity even if you are a legislator.”

“Now, of course, there are certain restrictions. If the penalty is more than six years and one day then the same cannot be implemented during the time when the Congress is in session,” he said.

“But certainly, there is no restriction as to the arrest if for example they are on recess,” he added.

In their SC petition, Duterte and Dela Rosa raised “an urgent and fundamental question concerning the jurisdiction of the ICC following the Philippines’ withdrawal from the Rome Statute.”

They alleged that “the ICC’s claim of jurisdiction is patently erroneous and violates the sovereign prerogatives of the Republic of the Philippines, as the preliminary examination conducted prior to the withdrawal’s effectivity does not qualify as a ‘matter under consideration’ by the Court under Article 127(2) of the Rome Statute.”

It was former president Duterte who ordered the withdrawal of the Philippines from the ICC in 2018 and the withdrawal become effective in 2019.

The petitioners said “the Rome Statute explicitly provides that a State Party’s withdrawal takes effect one year after formal notification, and that the Court retains jurisdiction only over matters that were already ‘under consideration’ before the withdrawal becomes final.”

Thus, they told the SC that “any subsequent investigative actions taken by the ICC—whether through continued preliminary examination, requests for cooperation, or the issuance of arrest warrants—constitute an unlawful assertion of authority beyond its jurisdiction.”

“The ICC’s insistence on proceeding with its investigation disregards the principles of state sovereignty and non-intervention, and its actions are legally baseless following the Philippines’ valid and complete withdrawal from the Rome Statute,” they also said.