The arrest of former President Rodrigo Duterte has sparked debates on social media, with viewpoints questioning its constitutionality and legality. This has brought into discussion the extent and limits of judicial power, particularly regarding the state’s authority to arrest and surrender individuals to international tribunals.

The main issue at hand is whether the state’s action—in cooperation with the International Criminal Police Organization (Interpol)—in executing the arrest warrant issued by the International Criminal Court (ICC) for the former president, who is accused of crimes against humanity, complies with constitutional requirements on arrests and due process, which fall within the purview of judicial power.

SCOPE OF JUDICIAL POWER

Judicial power, or judicial authority, refers to the power of the judiciary to interpret and apply the law, resolve disputes, and uphold constitutional rights. 

In the Philippines, this authority is vested in the Supreme Court (SC) and lower courts under Article VIII, Section 1 of the 1987 Constitution. This ensures that legal matters—including the validity of arrests—are decided by an independent and impartial judiciary.

Meanwhile, there are administrative and executive agencies that exercise quasi-judicial authority, which allows them to adjudicate disputes within their jurisdiction. Among the quasi-judicial bodies include the Civil Service Commission (CSC), Commission on Elections (Comelec), Commission on Human Rights (CHR), National Labor Relations Commission (NLRC), Energy Regulatory Commission (ERC), and Securities and Exchange Commission (SEC) .

However, their decisions remain subject to judicial review, reinforcing the judiciary’s monopoly over judicial power.

AUTHORITY AND JURISDICTION OF THE ICC

Unlike the International Court of Justice (ICJ), which has jurisdiction over states, the ICC exercises jurisdiction over individuals accused of genocide, crimes against humanity, war crimes, and the crime of aggression, as defined under the Rome Statute.

The ICC, as a court of last resort and an independent international tribunal, primarily has jurisdiction over individuals from state parties and crimes committed within their territories. However, it may also prosecute individuals from non-state parties if referred by the United Nations Security Council or if the non-state party voluntarily accepts its jurisdiction.

Despite the country’s withdrawal, the SC in Pangilinan v. Cayetano ruled that the ICC retained jurisdiction over crimes committed while the Philippines was a State Party, from November 1, 2011 until March 17, 2019.

While international tribunals may have jurisdiction over individuals or states, they do not exercise judicial authority within domestic legal systems.

The Rome Statute itself acknowledges that the ICC cannot override a state’s judicial authority, adhering to the principle of complementarity. Under this principle, the ICC does not replace domestic judicial systems but rather complements them. As stated in Article 17(1)(a) and (b) of the Rome Statute, the Court intervenes only when states fail to prosecute or are unwilling or unable to do so genuinely.

Moreover, since the ICC lacks its own enforcement mechanism, it relies entirely on State Parties for cooperation in supporting investigations, gathering evidence, executing arrest warrants, and surrendering suspects, as mandated under Articles 86 and 89(1) of the Rome Statute. It also works with INTERPOL to facilitate arrests.

Additionally, the Rome Statute requires that any arrest comply with the laws of the custodial state and grants the individual the right to challenge the arrest, as outlined in Article 59.

CONSTITUTIONAL GUARANTEES ON ARRESTS

Given that ICC arrests must comply with domestic law, what do Philippine laws require?

Under Article III, Section 1 of the Constitution, no person shall be deprived of life, liberty, or property without due process of law. This is further reinforced by Sections 12 and 14, which protect the rights of the accused.

Regarding warrants of arrest, Article III, Section 2 states:

“No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

For a warrant of arrest to be valid, it must: (1) be based on probable cause; (2) be determined personally by a judge; (3) be issued after examining the complainant and witnesses under oath; and (4) particularly describe the person to be arrested.

This is where contention arises: the ICC warrant, not issued by a Philippine judge, is argued to be invalid under domestic law.

CONTENTIONS RAISED

When the ICC arrest warrant was served on March 11, the Philippine National Police (PNP) and Presidential Commission on Transnational Crime (PCTC), in cooperation with Interpol, took Duterte into custody and flew him to The Hague the same day.

Arguments have been raised that the former president was denied due process, as the warrant was not issued by a local judge and did not follow extradition procedures, which would have allowed him to challenge his arrest before a competent judicial authority.

However, the Department of Justice (DOJ) justified the surrender under Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), particularly Section 17, which states:

“In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”

According to the DOJ, surrender under RA 9851 is a separate legal mechanism from extradition and does not require adherence to traditional extradition procedures. It further asserts that since the ICC is not a state, the Philippines’ extradition laws do not apply, and Duterte’s transfer was a lawful act of international cooperation.

LEGAL CROSSROADS

As international law experts have pointed out, this is a “case of first impression” for the Philippines. There is no prior instance in which a Filipino citizen within Philippine jurisdiction was arrested under a warrant issued by an international tribunal and subsequently surrendered to its jurisdiction.

On whether the ICC can rule on the validity of Duterte’s arrest, experts have cited the international law doctrine of mala captus, bene detentus (wrongly captured, properly detained), suggesting that even if an arrest is irregular, subsequent detention and prosecution may still be valid.

Ultimately, the SC, on the petitions raised before it, will determine whether the government’s actions complied with or violated the Constitution and domestic laws. While its ruling may not reverse Duterte’s transfer to ICC jurisdiction, it is expected to clarify how future arrests involving international tribunals should be handled within the Philippine legal system.

Above all, judicial authority remains the final safeguard against government overreach. Whether Duterte’s arrest was a lawful act of international cooperation or a circumvention of judicial power is a question only the SC can resolve.

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