DOJ Chief: Surrendering Duterte to ICC was the ‘only option’

Department of Justice (DOJ) Secretary Jesus Crispin ‘Boying’ Remulla said during a Senate hearing on Thursday that surrendering former President Rodrigo Duterte to the International Criminal Court (ICC) was the ‘only option’ and that extradition or a court order could not be obtained as the former president had already been turned over to The Hague.

“Extradition can’t be used here because we can’t file for extradition since the person is already here with us,” the justice secretary said.

He mentioned that extradition is when the court or the state with the warrant files for it.

“The extradition mentioned in the law is when the court or the state with the warrant files for extradition to the Philippines, so surrender is really our only option. We have no other option,” Remulla said.

The justice secretary further explained that the arrest process is in accordance with Article III of the 1987 Constitution.

“As far as we know, this case was investigated for seven years. Notices were given to the concerned parties, informing them that they could be charged, and they were allowed to respond. I know for a fact that they were given notices, questions were provided to them, and they were allowed to answer,” Remulla stated.

Remulla also admitted that he gave the clearance to serve the arrest warrant to Duterte and fly him to The Hague.

“I will admit it that I gave the clearances to—number one, serve the warrant of arrest as I saw it, as I deem fit. And number two, to fly him to The Hague, to be surrendered under Section 17 of Republic Act 9851,” the justice secretary said.

According to the said section, 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.

Sen. Imee Marcos, chairperson of the Senate Committee on Foreign Relations, and Sen. Ronald ‘Bato’ dela Rosa asked Philippine Center on Transnational Crime Executive Director Anthony Alcantara and Philippine National Police (PNP) Chief Pol. Gen. Rommel Marbil to reveal who ordered the transport of Duterte to The Hague.

Alcantara answered that he is not the “authority” to who ordered while Marbil invoked executive privilege.

“Nandito na tayo eh.  Executive privilege ka d'yan,” Dela Rosa told Marbil.

Marcos also scolded the PNP chief for pointing names while invoking executive privilege for himself to ‘refrain from answering the senators’ questions.

“Kung sinu-sino na ang itinuro mo ngayon mag-e-executive privilege ka,” the presidential sister told the PNP chief.

Remulla then butted in the heated discussion and stated that they didn’t want to attend the previous hearing to prevent them from ‘being bullied into a position.’

“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,” the justice secretary said.

The two senators refuted Remulla’s claim, stating that they are not ‘bullying’ the executive officials.

“I think that 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,” the justice secretary replied.

Former Supreme Court Associate Justice Adolfo Azcuna also said during the hearing that the surrender of the former president violated the Constitution and must bring the arrested person to Philippine court first before a foreign one.

“Thus, we must follow Article 59 of the Statute of Rome, which requires that the custodial state—namely, the Philippines—must first bring the arrested person before a local court to determine two things: first, whether the person is indeed the one named in the warrant; and second, whether the person has been informed of the charges against him or her,” he said.

Azcuna said that the Bill of Rights of the Constitution are only applicable in the Philippines, and the ICC will still prosecute the person regardless of the manner in which the arrest was made.

“In the ICC, I believe they follow what is called Male captus bene detentus, meaning that even if the arrest is illegal, the detention can be legal. It does not automatically mean that the person arrested must be released,” he added.

The former associate justice further explained that the ICC will prosecute despite the violation of the procedure in the surrender.

“They will balance the illegality of the arrest with the need to prosecute someone for very serious offenses under international law. In their view, the balance weighs in favor of prosecution; they will prosecute notwithstanding the violation of the procedure in the surrender,” Azcuna said.

The ICC launched an investigation on drug killings under Duterte from November 1, 2011, when he was still mayor of Davao City, to March 16, 2019, as possible crimes against humanity. 

The Philippines submitted its Notice of Withdrawal from the ICC on March 16, 2018 which took effect one year after the submission.