The Supreme Court, voting 9-5-1, denied Sen. Ronald “Bato” dela Rosa’s prayer for a temporary restraining order (TRO) or status quo ante order (SQAO) to prevent his possible arrest arising from a warrant issued by the International Criminal Court (ICC). The controversy has since been broadcast, debated, and even politicized ad infinitum. Let me, however, discuss what I believe is a very fundamental issue: Has the government adopted a clear, consistent, and unified position?
PRIOR TO THIS 9-5-1 VOTE, the Court passed sub silentio Dela Rosa’s repetitive motions for the issuance of an ex parte TRO or SQAO. It merely ordered the respondents to comment on the petition and the petitioner-senator to reply thereto. That practical denial of Dela Rosa’s plea should have given the government enough leeway to form a strong, unified stance to arrest the lawmaker and haul him to the ICC.
Then again, the Court’s 9-5-1 denial of Dela Rosa’s pleas strongly suggests a judicial recognition, at least preliminarily, that to the executive branch belongs the power to determine whether to cooperate with the ICC and that determination deserves judicial deference. It also woke up the government into, at last, acting solidly behind the Department of Justice’s opinion, though belatedly, to bring Dela Rosa to justice.
Parenthetically, the Office of the Solicitor General (OSG) led by the brilliant Darlene Marie B. Berberabe pointed to Section 17 of Republic Act No. 9851 (titled “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity” ), which “vests upon the State the discretion to determine whether a person accused of crimes punishable under the law should be surrendered to an international tribunal … such as the ICC.”
As the counsel of the government, the OSG emphasized that the implementation of the ICC’s warrant is within the power of the executive, since it “requires the discretion and wisdom of the President” on matters involving foreign relations and dealings with the international community.
Citing Pangilinan v. Cayetano (Mar. 16, 2021, per SAJ Marvic M.V.M. Leonen, en banc, 15-0), the OSG insisted that the President’s discretion as chief architect of our foreign policy must be accorded great respect and deference by the judiciary.
In contrast, Israelito Torreon, counsel for Dela Rosa, countered that the government cannot “disclaim ICC obligation in pleadings, then use an ICC warrant as the practical basis for a domestic arrest.” He pointed to prior contrasting public pronouncements from executive officials who contended that, after withdrawing from the Rome Statute, the Philippines was no longer duty-bound to cooperate with the ICC. He added that no less than the President declared that the government would “not lift a finger” to assist the ICC.
I BELIEVE THE QUESTION IS NOT WHETHER ONE SUPPORTS OR OPPOSES THE ICC WARRANT OF ARREST. The more important concern is the need for the government to speak with clarity and consistency in all matters, especially those involving international accountability.
Relevantly, the Supreme Court of the United States (Scotus) offers an instructive parallel. In Zivotofsky v. Kerry (June 8, 2015), it ruled that the President has the “exclusive power to grant formal recognition to a foreign sovereign” as part of his powers over foreign affairs. Interestingly, the Scotus stressed that the “[n]ation must speak … with one voice” and “only the Executive has the characteristic of unity at all times.”
This is why the OSG’s stance as the legal counsel of the state becomes particularly significant. When the OSG speaks, it speaks as the singular voice of the government. Yet, various officials projected differing approaches. Some insisted that the Philippine withdrawal from the Rome Statute terminated all its ICC obligations. Others acknowledged residual duties arising from proceedings initiated before the withdrawal.
ADMITTEDLY, CONTRASTING VIEWS WITHIN THE GOVERNMENT are natural in constitutional democracies. Even collegiate courts are sometimes divided. But once the executive branch adopts a legal posture before the Supreme Court through the OSG, consistency becomes indispensable. Government officials cannot oscillate and offer competing theories. This oscillation creates institutional confusion and international embarrassment.
Even the OSG itself recognized the danger of “multifarious pronouncements” from different departments that undermine the coherence of the government’s official stance. The warning is well taken. For when the executive branch is divided on whether ICC warrants may be enforced, uncertainty inevitably follows, not only for law enforcement agencies but also for the courts, the Filipino public, and the international community.
In fine, whether the ICC ultimately possesses enforceable jurisdiction over Dela Rosa is an issue the Court will resolve in due course. While waiting for the final determination, one principle should remain: The government must put its act together and speak with one voice.
One strong, resonant voice and one clear stance on the arrest of the senator and on any other subject.
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