The Senate cannot indefinitely shield Senator Bato dela Rosa from an International Criminal Court warrant, and if it insists on doing so, senators could face jail time and perpetual disqualification from holding public office for “obstruction of justice,” a former president of the Integrated Bar of the Philippines warned Tuesday. 

Dela Rosa was placed under the Senate’s protective custody on Monday in an effort to delay his arrest, allowing the embattled former police chief to exhaust all legal remedies in the Philippines before being surrendered to a foreign body. 

Law expert Domingo Cayosa, however, argued that this is only a temporary refuge because Dela Rosa is facing a serious offense of crimes against humanity, punishable by more than six years under Philippine law. 

The Constitution does not explicitly grant members of Congress immunity from arrest, although lawmakers could temporarily evade it if Congress is in session. However, this privilege under Article VI, Section 11 of the Constitution only applies to minor offenses punishable by not more than six years. 

“It’s only temporary, perhaps to avoid trouble. But in reality, under the law, they don't have the power or right to shield Senator Bato from arrest because the warrant of arrest concerns crimes against humanity, and the penalty for crimes against humanity is more than six years,” Cayosa said in a radio interview. 

“As a matter of fact, if the senators continue to frustrate, impede, or hinder the service of the warrant of arrest, they can be charged under PD (Presidential Decree) 1829, or the obstruction of justice…I don't think the senators would also want to do that,” he added.

The ICC warrant stems from De la Rosa’s role in the bloody killings tied to anti-drug operations waged by former president Rodrigo Duterte in Davao during his decades-long stint as mayor. The scheme was later carried out nationwide after he assumed the presidency in 2016.

ICC records showed that De la Rosa is criminally responsible as an “indirect co-perpetrator” for the crime against humanity of murder, allegedly committed between November 2011 and March 2019. 

The alleged extrajudicial killings were a result of the nationwide enforcement of the so-called “common plan,” designed to kill suspected criminals, thieves, and individuals allegedly involved in drug use, sale, or production.

The warrant alleged that Dela Rosa, being the then chief of the Davao police and chief of the Philippine National Police—both under Duterte’s watch—is responsible for the killings of 32 individuals at various locations in the Philippines. 

The new Senate leadership, comprised of Dela Rosa’s allies, remained adamant about giving him refuge, unfazed by the ICC warrant. 

Newly installed Senate President Alan Cayetano said they will only convince De la Rosa to surrender to authorities on the condition that a warrant is issued by a local court. 

This is consistent with past practice, he argued, in which senators were allowed to seek refuge in the Senate and exhaust all legal remedies before voluntarily surrendering to authorities.

“We are lawmakers, we're not lawbreakers. So if they can bring the warrant, we will receive it. All we are saying is, we need a warrant of arrest from a Philippine court first,” the Senate chief told reporters in a chance interview. 

Prior to the standoff between operatives of the National Bureau of Investigation and De la Rosa at the Senate premises on Monday, Cayetano claimed that De la Rosa had already assured the Senate as early as last year that he would honor the warrant if a Philippine court issued it.

Cayosa, however, argued that the outstanding ICC warrant against De la Rosa is nevertheless binding because under the local law, the Philippines recognizes international courts and tribunals’ right to issue an arrest warrant against a Filipino suspected of crimes against humanity.

Section 17 of the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851) allows Philippine authorities “to surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another state pursuant to the applicable extradition laws and treaties.” 

“This is not just an international treaty. It's in our local law. The resolution or the opinion of the leadership of the Senate cannot amend the provision of the law,” Cayosa pointed out. 

As a result, Dela Rosa can be arrested on an ICC warrant, and it’s up to the administration whether to surrender him to the international tribunal, according to Cayosa.

Furthermore, he asserted that the country’s withdrawal from the Rome Statute—the ICC’s founding treaty—under Duterte’s order in 2019 did not dissolve the country’s obligation in the international treaty, a legally binding written agreement between sovereign states governed by international law.

“On the treaty itself, we have a residual obligation to cooperate with the ICC for cases that already started before we withdrew,” he averred.

“If our government, the executive branch, is serious, it is obliged to implement the warrant of arrest because this is beyond the threshold of six years,” Cayosa concluded. 

Aside from an ICC warrant, Dela Rosa is also subject to a subpoena, compelling him to appear at CIDG’s office in Camp Crame on Thursday in relation to its ongoing investigation into complaints of over 100 alleged extrajudicial killings during the senator’s tenure as Davao City police chief and regional director. DILG Secretary Jonvic Remulla clarified that this is a separate probe from the ICC's.