The decision to surrender or transfer alleged co-perpetrators of former President Rodrigo Duterte in the ongoing International Criminal Court (ICC) case is primarily a matter of “executive prerogative,” the Department of Justice (DOJ) said Wednesday.

In a press briefing, DOJ spokesperson Atty. Polo Martinez emphasized that any move to hand over the individuals would ultimately be at the discretion of the Chief Executive.

“With the Executive, the Executive being the chief, of course, of the Executive Department, that's his prerogative. That's the Executive's prerogative. But again, is there a warrant? Is there something to act upon? There's nothing yet. We discuss all these things in theory because it's a pressing issue now,” Martinez told reporters.

Martinez noted that while the executive has discretion, any Supreme Court directive would take precedence.

“If the Supreme Court issues a directive that we should act a certain way, then we will have to comply in deference to the rulemaking power authority,” he explained.

The DOJ official stressed that, as of now, no arrest warrants have been issued.

He added that while hypotheticals are being discussed due to public interest, the department is awaiting formal orders before taking action.

Supreme Court’s role

When asked whether the Supreme Court could stop the executive from turning over the co-perpetrators, Martinez affirmed that the judiciary has the authority to issue binding directives.

“The Supreme Court, sir, that's correct. And also the executive itself can prevent itself from doing so. Again, it's an executive prerogative. They can choose to do so or not,” he said.

However, he clarified that defying a Supreme Court order would carry legal consequences, including potential contempt of court.

“Well, of course, sir, there will be consequences. As we all know, a non-compliance with a directive by the court may be subject to contempt…And then the court could also provide for specific consequences in the order depending on, let's say, if there is a law that was violated in performing that act. Right? So everything has consequences,” Martinez said.

“But at the same time, I also echo what you say, that all these are hypothetical, at least for now,” he added.

International obligations

Martinez also addressed questions on compliance with international law, including Interpol requests and obligations under the Rome Statute.

He noted that while the Philippines is a member of Interpol, non-compliance would mostly have diplomatic repercussions rather than legal penalties.

On 17 March 2019, the Duterte administration formally withdrew the Philippines from the ICC, exactly one year after notifying its exit from the Rome Statute.

“As of now, we know that we are no longer a party. We respect that. So we cannot just comply with provisions of the Rome Statute,” Martinez said.

Expediting SC resolution

The DOJ said it has no authority to request an expedited ruling from the Supreme Court.

Martinez said any motion for early resolution would need to come from the petitioner, who has the greater interest in prompt adjudication.

“They can file a motion for early resolution, citing grounds for why it should be granted. But it depends on the complexity of the case,” Martinez explained.

Senators Christopher “Bong” Go and Ronald “Bato” dela Rosa, along with former Justice Secretary Vitaliano Aguirre II, are among the alleged co-perpetrators of Duterte in the crimes against humanity case filed before the ICC.

Martinez clarified that reviewing the actions of Aguirre as a former official during the Duterte administration does not fall under the DOJ’s mandate.

He emphasized that the department can only investigate complaints that are formally filed.

“First of all, the evidence is submitted to us by the complainant, normally by law enforcement, by the NBI, or otherwise. That is the only evidence we will look at in determining if we can proceed to preliminary investigation,” he said.

Martinez likewise declined to comment on whether the Philippines might rejoin the Rome Statute, noting that the decision lies with the Department of Foreign Affairs and other agencies coordinating with international bodies.

With the matter pending before the Supreme Court and no warrants yet issued, Martinez said the DOJ maintains a cautious stance, emphasizing that any future action will strictly follow legal directives and established procedures.