The threat of being charged with obstruction of justice looms increasingly large for Senate President Alan Cayetano — this time, over his supposed defiance to heed the preventive suspension order imposed by the Ombudsman against acting Senate Sergeant-at-Arms Mao Aplasca.

Law expert Domingo Cayosa, former president of the Integrated Bar of the Philippines, maintained Sunday that the Ombudsman can initiate a probe into anyone in the government, including the President, if the circumstances warrant.

It is also empowered to suspend government officials and employees, and this sanction does not exempt Aplasca, who was slapped with a six-month preventive suspension without pay for sending a “warning shot” that led to the shooting incident inside the Senate premises on 13 May involving operatives from the National Bureau of Investigation.

“He [Cayetano] can be charged because obstruction of justice is a crime for any person, whether you are the Senate president or an ordinary citizen,” Cayosa said, partly in Filipino, in a radio interview.

“If you knowingly impede, frustrate, or delay the investigation or prosecution of an accused or suspect, then that might be considered obstruction of justice,” he added.

Obstruction of justice is punishable by up to six years in prison and a fine of up to P6,000. If the offender is a public official or employee, he could face an additional penalty of perpetual disqualification from holding public office.

Aside from rejecting Aplasca’s suspension, the Senate also turned down the subpoena for copies of the CCTV footage in connection with the 13 May shooting, according to Ombudsman Boying Remulla.

Although the Philippine National Police Criminal Investigation and Detection Group, which also launched a parallel probe, had already been furnished with the requested copies of the CCTV, Aplasca said in a separate statement.

Cayetano and allies in the Senate have been facing allegations of obstruction of justice for sheltering Senator Bato dela Rosa in the guise of protective custody amid an International Criminal Court warrant for crimes against humanity.

They were also accused of “staging” the shooting fiasco, which allegedly allowed dela Rosa to get out of the Senate unnoticed before dawn on Thursday, or after the tensions from the incident subsided.

Cayetano has no qualms in asserting that they did not commit a crime, much less obstruction of justice, citing the lack of a warrant.

The Senate leader has since claimed that the ICC warrant is invalid and that they will only surrender dela Rosa if it is issued by a Philippine court.

Cayosa, in response, argued that Cayetano’s argument is misplaced because a local warrant is no longer warranted. Citing the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851), he emphasized that 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 law states that Philippine authorities are allowed “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.”

“The law is very clear. You cannot add any conditions to it… At the very least, since there is an arrest warrant they can plainly see, they will have him arrested and then question it before the court. But you cannot make a precondition for compliance with the arrest warrant,” Cayosa pointed out.

‘Fugitive’ dela Rosa

The Supreme Court defines a fugitive from justice as someone “who not only flees after conviction to avoid punishment, but one who also flees after being charged to avoid prosecution.”

The essential element is the intent to evade prosecution or punishment, the high court states.

According to Cayosa, if the SC is only consistent in adhering to this doctrine, it should not have entertained dela Rosa’s camp’s petition for a TRO to block the enforcement of the ICC warrant.

This is because the doctrine requires a fugitive to voluntarily surrender before seeking any judicial relief from the court.

“No less than the Supreme Court has recognized the jurisdiction of the ICC with respect to crimes that were committed, investigated, and prosecuted before the Republic of the Philippines withdrew from the Rome Statute,” Cayosa further explained.

The camps of former president Rodrigo Duterte and dela Rosa have since contested the ICC’s jurisdiction to enforce the warrant, as the Philippines ceased to be a state party to the Rome Statute as early as 2019. However, the ICC contended that it still retains jurisdiction over crimes committed before the withdrawal.

Dela Rosa is wanted by the ICC for crimes against humanity over the alleged extrajudicial killings allegedly committed between November 2011 and March 2019 — spanning Duterte’s tenure as Davao mayor and as the country’s chief executive.

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.

Reports have indicated that dela Rosa requested that he be placed in PNP custody after he felt unsafe in the Senate following the shooting incident. Cayosa, however, countered that fugitive dela Rosa cannot choose where he will be housed, and granting him such is tantamount to giving him “special treatment,” which runs against the law.