The Supreme Court (SC) was asked on Wednesday, March 12, to compel the government to bring back to the Philippines former president Rodrigo R. Duterte who was turned over to the International Criminal Court (ICC) to face trial for crimes against humanity.

After his arrest on March 11, Duterte was flown to The Hague, Netherlands later on the same day.

The plea was contained in two separate habeas corpus petitions filed by Duterte’s children – Davao City Mayor Sebastian “Baste” Duterte and Veronica “Kitty” Duterte. 

The Writ of Habeas Corpus, considered the most powerful writ, is a legal remedy against arbitrary arrest and detention. Through the writ, a court can order a person who arrested and detained another person to bring the arrested and detained person personally before the court for judicial inquiry.

Named respondents in the two petitions were Executive Secretary Lucas Bersamin, Local Government Secretary Jonvic  Remulla, Philippine National Police (PNP) Chief Gen. Francisco Marbil, PNP-Criminal Investigation and Detection Group (CID) Director Gen. Nicolas Torre III, Solicitor General Menardo Guevarra,  Foreign Affairs Secretary Enrique Manalo, Armed Forces of the Philippines (AFP) Chief of Staff Romeo Brawner Jr., Executive Director of the Philippine Center on Transnational Crime (PCTC) Undersecretary Lt. Gen. Antonio Alcantara, Capt. Johnny Gulla  and the Bureau of Immigration (BI).   

In a press briefer, the SC's Office Office of the Spokesperson said the SC did no issue a temporary restraining order (TRO) on the petition filed by the former president and Sen. Ronald Dela Rosa who wanted the High Court to stop the enforcement of the arrest order issued by the ICC. 

"After a virtual deliberation on the 94-page petition, the SC found that the petitioners failed to establish a clear and unmistakable right for the immediate issuance of a TRO," the press briefer stated. 

It, however, said the SC directed the respondents "to comment on the petition with prayer for TRO and/or writ of preliminary injunction within a non-extendible period of 10 days from notice."

Also, the press briefer stated that the petitions filed by the Duterte children have been raffled to the justice-in-charge "for appropriate action."

Veronica was with her father when the ICC’s arrest order was served last March 10 upon their arrival from Hong Kong.

In their petitions, the Duterte children asked the SC to order the respondents to appear before the High Tribunal and produce the body of the former president and to explain why he should not be freed immediately.

In his petition, Mayor Duterte told the SC: “In the present case, petitioner humbly submits that his father was arrested and is illegally detained pursuant to a purported warrant of arrest issued by the International Criminal Court (ICC).” 

“His father was denied his constitutional rights by surprising him of arrest upon arrival from his trip to Hong Kong without giving him due notice to defend himself by filing any comment or counter arguments prior to the issuance of the warrant of arrest,” the mayor said.      

In both petitions, the Duterte children said their father needed medical attention which has been denied by the respondents despite request.   

“No doctors were allowed access to him. He was also denied access to his other lawyers which caused delay in filing of petition for certiorari and prohibition,” they also said. 

They pointed out that the ICC-issued arrest warrant was illegally served because the Philippines had already withdrawn effective March 17, 2019 as a state party to the Rome Statute which established the ICC. 

Thus, they said: “The warrant of arrest against Duterte was issued by an entity without jurisdiction within Philippine authority. The ICC no longer possesses jurisdiction over the Philippines, considering the latter’s withdrawal from the Rome Statute, effective as of 17 March 2019.”

At the same time, they told the SC that despite the country’s withdrawal from the Rome Statue, crimes against humanity and other international crimes may still be prosecuted under Republic Act No. 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.   

They said RA 9851 mandates jurisdiction to the Philippine trial courts over crimes against humanity.

“As such, the Philippine government has absolutely no legal obligation to implement or enforce any warrant of arrest issued by the ICC, especially when it undermines Philippine sovereignty,” they stressed.    

They lamented that the respondents failed to adhere to Article II, Section 7 of the 1987 Constitution when they allowed their father to be turned over to the ICC through the International Criminal Police Organization (Interpol).      

The constitutional provision mandates the government to place “paramount consideration to national sovereignty in its dealings with foreign parties,” they said.      

They noted the Interpol’s admission that a red notice is merely a “request  to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.”

“In other words, the Philippine government was neither obligated nor expected to cooperate with Interpol, especially when it has been the consistent position of the government that ICC has no jurisdiction,” they said.    

They also told the SC: “The ICC’s warrant of arrest against Rodrigo Roa Duterte contravenes with R.A. 9851 and undermines Philippine Court’s primacy. It also disregards Philippine sovereignty, which mandates that the Philippine government has the ultimate authority to enforce its laws and administer justice within its jurisdiction.”     

Also, they said there was no proper  proper service of summons made since their father was not provided with an official and sealed physical copy of the arrest warrant.     

They said the former president was merely shown a photograph of an alleged purported warrant on a mobile phone screen.   

 “While the warrant purports to be issued by the International Criminal Court, its execution within Philippine territory must still adhere to the country’s domestic legal procedures,” they also said.

Veronica filed her petition through lawyers Salvador S. Panelo and son Salvador Paolo Panelo Jr., while Mayor Duterte was assisted by the Tolentino and Associates law firm.