Why the Supreme Court should rule on Duterte arrest issues, experts explain
MANILA, Philippines — The Supreme Court should rule on the petitions assailing the legality of the arrest of former president Rodrigo Duterte by the International Criminal Court (ICC) despite its partial mootness.
For lawyer Rodel Taton, an international law expert, the high court should rule on this case as it is about the country’s sovereignty and independence, whether from “interference by outside forces like an international organization and/or state.”
“There may be some mootness in the filing. But I would suppose that the Supreme Court, given that this is a matter of national concern, will still look into it,” Taton said in an interview with reporters on Wednesday, March 12.
Despite the temporary restraining order (TRO) and the habeas corpus petition possibly being moot as the former president was already flown to The Hague, Taton said there are still exceptions to the mootness rule of the Supreme Court.
“There are exceptions to mootness, and for several instances, our Supreme Court has ruled on cases of national significance to provide legal guidance to future generations,” Taton said in a mix of English and Filipino.
“We cannot just leave this question unanswered,” he added.
Supreme Court’s judicial power
According to the 1987 Constitution, the Supreme Court’s judicial power includes the authority to settle actual controversies involving rights that are legally demandable and enforceable.
The high court’s judicial power also includes determining “whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”
What is the 'moot and academic' rule?
A case is considered moot and academic when new events render it no longer an actual controversy, meaning any decision on it would have no practical effect.
In cases like these, the Supreme Court typically declines jurisdiction or dismisses the case on grounds of mootness.
However, there are exceptions to the mootness rule, including when:
- There is a grave violation of the Constitution.
- The case involves a matter of paramount public interest.
- The issues raised require the formulation of controlling legal principles to guide the judiciary, the legal profession, and the public.
- The case is capable of repetition yet evading review.
In this case, the three petitions filed in Duterte’s favor remain pending before the Supreme Court, despite Duterte’s transfer to The Hague.
However, International Center for Transitional Justice lawyer Ruben Carranza noted that even if the Supreme Court issues a TRO, it would not be binding on the ICC.
He added that any future TRO issued may only be useful for Filipinos who could be subjects of ICC arrests in the future.
“Filipinos should understand that this is not an isolated case. The ICC has been involved in similar arrests in other countries, including those of former heads of state,” Carranza said in an interview with ANC on March 12.
First time in Philippine history
This is the first time a former high government official of the Philippines has been arrested by the International Criminal Court.
This means there is no legal precedent governing such an arrest.
However, Justice Assistant Secretary Mico Clavano said that the apprehension of the former president “strictly adhered to domestic and international legal procedures.”
According to Clavano, the arrest was carried out by Filipino law enforcement agents as “a matter of comity and mutual cooperation in the international community.”
The justice spokesperson also cited Section 17 of Republic Act 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, stating that “the Philippines may surrender suspected or accused persons in the Philippines to the appropriate international court for crimes punished by the said law, including crimes against humanity.”
“DOJ prosecutors were present to observe the process and attest to its legality, ensuring that the arrest complied with both local and international standards,” Clavano said.
In a statement from Malacañang on Tuesday, March 11, the warrant from the ICC was served by Prosecutor General Anthony Fadullon.
Petitions for Duterte
Three petitions have been filed before the Supreme Court challenging Duterte’s arrest.
The first petition, filed by lawyer Israelito Torreon on March 11, seeks to declare the Philippine government’s cooperation with the ICC unconstitutional.
Duterte and Sen. Bato Dela Rosa, the petitioners, also asked the Supreme Court to prevent authorities from taking any further actions related to the case.
The second and third petitions were filed separately by Veronica and Sebastian Duterte, both requesting a writ of habeas corpus to compel authorities to “produce the body” of the former president and explain the cause of his detention.
Duterte’s arrest, ICC charges
Duterte was transferred to ICC custody early morning of March 13 (Manila time) and landed at Rotterdam Airport in The Hague on the same day.
The 79-year-old former president was arrested on March 11 upon arrival at Ninoy Aquino International Airport Terminal 3 from Hong Kong.
The ICC’s pre-trial chamber cited Duterte’s “alleged criminal responsibility” for crimes against humanity (murder) in relation to the extrajudicial killings that took place under his administration.
The charges cover incidents that occurred between Nov. 1, 2011, and March 16, 2019, before the Philippines officially withdrew from the ICC.
According to official Philippine government records, Duterte’s war on drugs resulted in around 6,000 deaths.
However, human rights groups estimate the actual death toll could be as high as 30,000, with many victims being small-time drug users and pushers.
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