The decision to surrender or transfer the alleged co-perpetrators of former President Rodrigo Duterte to the International Criminal Court (ICC) in The Hague is primarily an “executive prerogative,” the Department of Justice (DoJ) said on Wednesday.

In a press briefing, DoJ spokesperson Polo Martinez said it would ultimately be up to President Ferdinand “Bongbong” Marcos Jr. to act.

“With the Chief Executive being head of the executive branch, that’s his prerogative. But again, is there a warrant? Is there something to act upon? There’s nothing yet. We’re discussing all of this in theory because it’s a pressing issue now,” Martinez said.

He clarified, however, that any Supreme Court directive would take precedence.

“If the Supreme Court issues a directive on how we should act, then we must comply,” he said.

Martinez emphasized that no arrest warrants have been issued so far and the DoJ is simply awaiting formal orders before taking any action.

Supreme Court’s role

Asked if the Supreme Court could block the executive branch from turning over the accused, Martinez said the judiciary does have the authority to issue binding directives.

“That’s correct. And the executive branch itself can also decide not to act. It’s an executive prerogative — they can choose to do so or not,” he said.

However, he warned that ignoring a Supreme Court order would have legal consequences, including possible contempt of court.

“Of course there are consequences. Non-compliance may lead to contempt, and the court could provide specific penalties depending on the law involved. But for now, all of this is hypothetical,” Martinez said.

International obligations

Martinez also addressed questions about 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 mainly have diplomatic — not legal — repercussions.

The DoJ spokesperson reminded reporters that the Philippines formally withdrew from the ICC on 17 March 2019, one year after notifying it of its exit from the Rome Statute.

“As of now, we are no longer a party. We respect that, so we cannot simply comply with provisions of the Rome Statute,” he said.

Supreme Court resolution and DoJ role

Martinez said the DoJ cannot request an expedited ruling from the Supreme Court; only the petitioner can file a motion for early resolution, depending on the case’s complexity.

He also clarified that reviewing the actions of former Justice Secretary Vitaliano Aguirre II, in his role during the Duterte administration, is beyond the DoJ’s mandate. The department can only investigate formally filed complaints.

“First, evidence is submitted to us by the complainant, usually through law enforcement or the NBI. That is all we can review to determine whether or not to proceed with a preliminary investigation,” he said.

Martinez declined to comment on whether the Philippines might rejoin the Rome Statute, noting that such decisions fall under the Department of Foreign Affairs and other agencies coordinating with international bodies.

With the case pending before the Supreme Court and no arrest warrants issued yet, Martinez said the DoJ is taking a cautious stance, emphasizing that any future actions will strictly follow legal directives and established procedures.