Had the Philippines been still a member of the International Criminal Court (ICC), former president Rodrigo Duterte could have been entitled to an extradition process instead of being surrendered.

But this was not the case, according to Department of Justice (DOJ) Secretary Jesus Crispin "Boying" Remulla. And Duterte only has himself to blame for it.

Remulla had this to say during the hearing of the Senate Committee on Foreign Relations on the topic of the former leader's arrest by ICC. Senator Imee Marcos led the inquiry.

This was after Senator Ronald "Bato" dela Rosa cited the diffusion order, which stated that the action to be taken was to locate and arrest with the view of extradition. He emphasized that surrender was not mentioned in the order.

"Wala namang sinabi ditong surrender, extradition lang (Surrender was never mentioned here, only extradition)," Dela Rosa said.

"Kaya bakit hindi natin hinintay yung ICC na mag-initiate ng extradition laban kay pangulong Duterte bakit ibiniyahe na agad natin doon sa Interpol? Wala namang sinabi dito na kailangan natin surrender (So why didn't we wait for the ICC to initiate extradition proceedings against president Duterte before we took him to Interpol? It wasn't stated here that we needed to surrender him)," he added.

But Remulla explained that there must be an existing treaty for an extradition to be requested.

"Ang extradition po na sinasabi sa Section 17 ay mayroon pong treaty sa extraditing state...Kung miyembro po tayo ng ICC nakatulong sana kay president Duterte na hindi po siya lilipad pero siya po mismo ang nag-atras ng ating membership eh (The extradition mentioned in Section 17 involves a treaty with the extraditing state...If we were a member of the ICC, it could have helped president Duterte avoid being flown out, but he himself withdrew our membership)," he added.

Remulla was referring to Republic Act (RA) No.9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity which within its provisions, allows them two options: either extradition or surrender.

Meanwhile, former associate justice Adolfo Azcuna Jr. said that it was up to the SC to resolve whether extrajudicial rendition was valid in the Philippines since Duterte was surrendered without being brought to the local court.

"In fact, the procedure in the ICC calls for bringing the person to a Philippine court first before surrendering the person to the ICC. So if you do not follow that, it can be argued that it is what we call abuse of process and an abuse of process can be raised in the ICC itself," he said.

He added that it remains debatable if such abuse of process is curable.

"It seems to me that the initial hearing on March 14 done by the pre-trial chamber was an attempt to cure the deficiency of the Article 59 procedure because the three judges in the hearing simply did what the local court would have done. That is [to] determine that the person is the person named in the warrant of arrest, and that the person was informed of the charges against him or her," Azcuna said.

"They merely supplied the defect that the absence of the custodial states, local court, created. So it remains whether or not male captus bene detentus will be applied by the ICC," he added.

The legal doctrine of male captus, bene detentus (wrongly captured, properly detained) states that if a person has been wrongfully or unfairly arrested, it does not affect the legality of their subsequent detention or trial under due process.

Senator Christopher "Bong" Go, who participated online, stated that he wanted to attend the hearing but he could not face some people present there who he did not identify.

"Di ko po kayang humarap sa iilang tao sa pagdinig na ito na di marunong rumespeto," he said.

While Go was speaking, Senator Robin Padilla was in tears before mysteriously walking out of the hearing for a brief time.   

Meanwhile, Special Envoy on Transnational Crimes Ambassador Markus Lacanilao was cited in contempt by the Senate panel. The motion was made by Dela Rosa. This was concerning the ICC Transfer of Custody document he filled out for Duterte's arrest as the Philippine government representative.  

As of writing, Lacanilao is under Senate custody.

According to Remulla, they will write a letter to the Senate panel for the reconsideration of the contempt citation since Lacanilao's grandfather died and he has to take care of the burial.

Didn't want to be bullied

During the hearing, Dela Rosa pressed Philippine Center on Transnational Crime (PCTC) executive director Anthony Alcantara if he ordered Philippine National Police (PNP) Chief Gen. Rommel Francisco Marbil to bring Duterte to a plane en route to The Hague.

Alcantara said that he did not have the authority to give such an order. According to Marbil, he merely tasked the PNP-Criminal Investigation and Detection Group (PNP-CIDG) to assist the PCTC.

Irked, Dela Rosa asked Marbil if he was lying. But he invoked executive privilege. Remulla jumped in, stating that this was the reason why they didn't want to attend in the first place.

"That’s why we didn’t want to attend the last hearing because this is what we were expecting. We didn’t want to be bullied into a position," Remulla said.

"I think you are trying to make people admit something that they will not admit. An executive privilege is a valid excuse not to answer any question," he added.

But Marcos said that they are just trying to understand every step of the way. Dela Rosa on the other hand, said that they are not bullying them, rather, they just want to ferret out the truth.

"That’s why if you’re trying to make a person admit something that should not be admitted, it means that there is something more to it. The clearance given by the DOJ was probably the most important part of it —- to serve the warrant of arrest and to surrender the person under the law," Remulla stressed.