Daily Tribune“Government apologists seem to have forgotten that we have the Constitution, which says in the Bill of Rights that no one shall be arrested EXCEPT upon a warrant issued by a court after a judge has personally determined probable cause. No exceptions. Not even ICC warrants.
Let us not talk about former President Rodrigo Duterte’s supposed “kidnapping” to The Hague. The matter is before the Supreme Court and may be subjudice. Instead, on the now deafening debate as to whether or not a Filipino may be arrested without a warrant by the mere expedient of the police brandishing a warrant from the International Criminal Court (ICC), allow me to give my two centavos’ worth. Considering how much I charge to make legal opinions, the DAILY TRIBUNE is getting it really cheap (joke lang po, Boss Willie).
Before I begin this learned (ahem, ahem) dissertation, allow me to clarify that we shall not delve into the jurisdiction of the ICC over the alleged crimes against humanity committed by Duterte, in the classical definition of the word as “the power to hear and decide cases.” Rather, I shall limit myself to this question: may the police just arrest a person subject of an ICC warrant on the strength of only that warrant itself?
My short answer is “no.”
Now, my long answer. In justifying the arrest of Duterte on Philippine soil, President Ferdinand Marcos Jr. issued a statement to the effect that the country is obliged to enforce a “Red Notice” issued by Interpol. To those wondering what kind of creature a Red Notice is, according to the very website of Interpol, it “is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or court order issued by the judicial authorities in the requesting country. Member countries apply their own laws in deciding whether to arrest a person.”
Note the use of the phrase “member countries apply their own laws in deciding whether to arrest a person.” Therefore, it was not quite accurate for Marcos to say that “hindi natin mahindian ang Interpol” (we cannot say no to the Interpol) as, in fact, the same website says that “Interpol cannot compel the law enforcement authorities to arrest someone who is the subject of a Red Notice.”
In saying that there was nothing illegal in arresting persons in the Philippines on the basis of a Red Notice, some misguided souls — including one highly politicized former Supreme Court associate justice called Antonio Carpio — invoke Republic Act 9851 (2009) which they say authorizes the authorities to SURRENDER OR EXTRADITE persons accused before the ICC.
But as Judge Kapunan, our professor in criminal law at the Ateneo, used to chide us, “wrong ey-geyn!” While the Supreme Court is always right because it is final, former justices are not always right or final, especially one struggling to remain relevant after retirement.
There is no such thing as an international arrest warrant enforceable in and by itself. Under international law, any act of supranational bodies including the ICC, must be measured by the standards of municipal law.
Even international treaties attain a status equal only to acts of Congress, so the late Jovito Salonga taught us. Meaning that they are still subject to our laws, lest there be a huge derogation of sovereignty. Besides, Section 17 of RA 9851, the law cited by those defending Duterte’s arrest, uses the word “may”: “may surrender,” “may extradite.” As every law freshman knows, “may” is discretionary, directory, NOT mandatory.
What is the law on the matter of arrests? Government apologists seem to have forgotten that we have the Constitution, which says in the Bill of Rights that no one shall be arrested EXCEPT upon a warrant issued by a court after a judge has personally determined probable cause. No exceptions. Not even ICC warrants.
Under the doctrine of interpretare et concordare legibus est optimus interpretandi (laws must be read in harmony), since an ICC warrant is, for all legal effects and purposes, a request for extradition, then such warrants should go through the Department of Foreign Affairs, which then endorses it to the Department of Justice for the purpose of filing the necessary action in the proper court, which should be the one to decide the issue of arrest after a hearing.
There is also a law regarding that, for the edification of Justice Carpio: Presidential Decree 1069. Only in that manner may international law, our own laws, our sovereignty, the constitutional injunctions against illegal arrests and due process, and, most importantly, our dignity and self-respect as a nation, may be upheld. Otherwise, any such arrests shall definitely be unwarranted.
