The Supreme Court (SC) was asked late Tuesday afternoon, March 11, to stop the enforcement of the arrest order issued by the International Criminal Court (ICC) against former president Rodrigo R. Duterte.
The SC is now on recess until the end of March. It was not known immediately if the SC would hold a special session to tackle the petition.
However, at 6:02 p.m. on Tuesday, March 11, the SC's Office of the Spokesperson, in a press briefer, said: "Given the significance of this case and upon Chief Justice Alexander G. Gesmundo's instruction, a special raffle has been conducted pursuant to Rule 7, Section 7 of the Internal Rules of the Supreme Court."
Legal circles said that with the immediate raffle to determine the justice-in-charge of the petition and despite its recess, the SC may call a special session to deliberate on the petition.
Duterte was arrested in the morning of March 11 upon his arrival from Hong Kong and has been placed in the custody of Philippine authorities.
Department of Justice Prosecutor General Richard Anthony Fadullon said the ICC arrest warrant was served to Duterte by Philippine Center for Transnational Crime (PCTC) Executive Director Anthony Alcantara.
The SC petition for certiorari and prohibition with plea for a temporary restraining order (TRO) or writ of preliminary injunction was filed by Duterte, himself, and Sen. Ronald Dela Rosa.
They were represented by the Law Firm of Torreon and Partners led by lawyers Israelito P. Torreon, Resci Angeli Rizada, Reginald Matt Santiago, and Eula Maye Celaine P. Arias.
Named respondents in the petition were Executive Secretary Lucas P. Bersamin, Justice Secretary Jesus Crispin Remulla, Local Government Secretary Jonvic Remulla, Philippine National Police Chief Gen. Francisco Marbil, P Gen. Nicolas Torre III as chief of the PNP’s criminal investigation and detection group (CIDG), Solicitor General Menardo I. Guevarra, Foreign Affairs Secretary Enrique Manalo, and Armed Forces Chief of Staff Gen. Romeo S. Brawner Jr.
Duterte and Dela Rosa told the SC their petition “raises an urgent and fundamental question concerning the jurisdiction of the ICC the situation in the Philippines following its 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.”
Among other legal arguments, they also told the SC:
“A plain reading of the Statute confirms that a mere preliminary examination—which is a unilateral and discretionary prosecutorial activity, rather than a judicial process—does not constitute a ‘matter under consideration’ by the Court.
“It is an internal assessment by the Office of the Prosecutor (OTP) and not a formal judicial proceeding subject to Pre-Trial Chamber oversight.
“In the Philippines’ case, no authorization had been issued by the Pre-Trial Chamber before the country’s withdrawal became effective on March 17, 2019. The preliminary examination conducted by the OTP before this date remained an internal prosecutorial function, which, under the Rome Statute, does not independently confer jurisdiction on the ICC.
“Therefore, 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.
“Considering the nature of the case as well as the circumstances revolving the same, there is no other plain, speedy, and adequate remedy available to the petitioners, but to seek the issuance of TRO/WPI before the Honorable Supreme Court.
“It now becomes evident that the ICC arrest warrant is being politicized amid the current political climate in the Philippines, necessitating Supreme Court intervention to protect the rights and liberties of Filipino nationals.
“The issuance of this arrest warrant and Interpol Red Notice is not a neutral act of justice, but rather a highly politicized maneuver that aligns with the current political climate in the country.
“Given the deepening political divisions, power struggles, and strategic alliances among key political players, it is clear that the ICC’s actions are being leveraged to serve particular political interests rather than uphold genuine accountability.”
Duterte and Dela Rosa asked the SC:
“Upon the filing of this petition, issue a temporary restraining order (TRO) immediately restraining and prohibiting respondents, their agents, representatives, and all persons acting under their direction or authority from allowing entry, facilitating, or in any manner cooperating with the International Criminal Court, its investigators or prosecutors in the conduct of any investigation related to the Philippine government’s anti-drug campaign; enforcing or assisting in the enforcement of any warrant of arrest, summons, or request issued by the ICC against petitioner or any other individuals in connection with the ICC’s investigation of the Philippines; coordinating or providing assistance to INTERPOL or any foreign law enforcement agency in relation to the execution of ICC-issued warrants, red notices, or other legal actions pertaining to the Philippine situation; taking any other action that would give force and effect to the ICC’s proceedings despite the Philippines’ withdrawal from the Rome Statute.
“Issue a writ of preliminary mandatory injunction enjoining respondents, their officers, and all persons acting under their authority from committing the acts stated above during the pendency of this case and ordering the immediate suspension of any ongoing cooperation with the ICC, including but not limited to the provision of evidence, documents, or intelligence related to its investigation; the prohibition of any law enforcement agency, particularly the Philippine National Police, especially the PNPCIDG headed by Respondent Torre, and the Armed Forces of the Philippines, from assisting in or executing any ICC-issued warrants or arrest orders; the reaffirmation of the exclusive jurisdiction of Philippine courts over crimes allegedly committed within Philippine territory, to the exclusion of any foreign tribunal or international court.
“Issue a decision declaring and affirming the unconstitutionality of the Philippine government cooperation with the ICC, specifically declaring that the Philippine Government’s withdrawal from the Rome Statute on March 17, 2019, effectively terminated all jurisdiction of the ICC over the Philippines and its 91 nationals; that any cooperation by the respondents or any government agency with the ICC, including participation in its investigations, enforcement of its orders, or assistance in securing accused individuals, is unconstitutional and violative of Philippine sovereignty; that any attempt to enforce ICC-issued warrants of arrest in Philippine territory without due process under Philippine law constitutes an unlawful and unconstitutional act.
“Issue a permanent injunction/prohibition perpetually restraining and prohibiting respondents, their officers, and all persons acting under their authority from engaging in any form of cooperation with the ICC in relation to the Philippine situation.
“The petitioners likewise pray that this Honorable Court grant such other reliefs that it deems just and equitable under the circumstances, including, but not limited to, issuing such other orders that would protect the constitutional rights of petitioner and ensure the enforcement of Philippine sovereignty and the rule of law.”