OSG: SC can’t order Duterte’s release abroad

The Office of the Solicitor General (OSG) has asked the Supreme Court to junk the consolidated habeas corpus petitions filed by the children of former President Rodrigo Duterte, arguing that the cases have become moot with Duterte no longer in the Philippines but in the custody of the International Criminal Court (ICC) at The Hague, Netherlands.

In a 133-page memorandum, Solicitor General Darlene Berberabe said it is an “undisputed fact” that Duterte is being held by the ICC in the Netherlands — placing him beyond the territorial jurisdiction of Philippine courts. Any relief the Supreme Court may grant, she said, would be “ineffectual and without practical value.”

Since the former president is outside Philippine territory, Berberabe argued, any order from the high court cannot be enforced. This, she said, makes the case non-justiciable and it fails to meet the constitutional requirement of an actual controversy for judicial review.

The OSG’s submission was in response to the consolidated petitions filed by Davao City Rep. Paolo Duterte, Davao City Mayor Sebastian Duterte, and Veronica “Kitty” Duterte who asked the Supreme Court to order their father’s release and to facilitate his return to the Philippines.

The Duterte siblings want the high court to rule on their habeas corpus petitions and declare illegal the arrest, surrender, and continued detention of the former president, who has been held in The Hague for more than 10 months to face crimes against humanity charges linked to his administration’s bloody anti-illegal drug campaign.

The petitions were filed in March 2025, shortly after the government surrendered Duterte to the ICC. The Supreme Court later ordered the parties to submit memoranda before it rules on the cases.

Sebastian Duterte filed his memorandum on 29 December 2025, while Paolo Duterte and Veronica Duterte submitted their memoranda on 5 January 2026.

In their submissions, the siblings insisted that their father’s detention abroad does not strip the Supreme Court of its authority, nor does it automatically render the petitions moot. They cited both foreign and local jurisprudence to argue that courts may still grant habeas relief even when a detainee is held outside national territory.

Among the cases they cited was the US Supreme Court’s ruling in Boumediene v. Bush, which recognized the habeas corpus rights of foreign nationals detained at Guantanamo Bay, as well as the Philippine case Villavicencio v. Lukban (1919), which involved the forcible transfer of women from Manila to Davao. 

Veronica Duterte also pointed to a 2025 US case involving Abrego Garcia and the Philippine government’s efforts to secure the return of former lawmaker Arnulfo Teves Jr. from Timor-Leste.

Paolo Duterte said the Supreme Court is duty-bound to resolve the petitions, noting that this is the first time in Philippine history that a former president was surrendered by his own government to an international tribunal.

“It is of utmost public interest for the citizens of our Republic to know whether such arrest was lawful or not,” he said, adding that a ruling would help set guiding principles for similar cases in the future.

The siblings also argued that their father’s arrest violated the 1987 Constitution, which requires arrests to be carried out only through warrants personally issued by a judge after a finding of probable cause.

Berberabe, however, rejected these arguments, maintaining that the Supreme Court cannot order the release of a person being held by a foreign tribunal exercising jurisdiction in another country. With no enforceable relief available, she said, the case falls outside the scope of judicial review.