Argument for Bato TRO
Hernando’s dissent threaded multiple needles, grounding everything in the supremacy of the Constitution over foreign or international processes.
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Daily TribuneHernando’s dissent threaded multiple needles, grounding everything in the supremacy of the Constitution over foreign or international processes.
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Intense debates likely unfolded in the Supreme Court en banc, culminating in the 9-5-1 vote denying Senator Ronald “Bato” dela Rosa’s petition for a temporary restraining order and/or status quo ante order.
But the skirmishes are far from over. The High Tribunal underscored that it “only decided on the prayers for interim relief. The main issues raised by the parties in their pleadings and motions are yet to be resolved in the main case.”
Associate Justice Ramon Paul Hernando was among the magistrates who voted to grant the relief sought by the senator.
Hernando’s dissent threaded multiple needles, grounding everything in the supremacy of the Constitution over foreign or international processes.
The majority likely argued that the petition was premature since Dela Rosa had not yet been arrested and therefore had no standing to seek injunctive relief.
Under the classical doctrine, courts do not issue relief against an anticipated or speculative harm.
Hernando, however, rejected the “wait-and-see” attitude, citing the experience of former President Rodrigo Duterte, who was “whisked away” to the International Criminal Court (ICC) immediately upon his arrest, rendering any domestic judicial remedy useless.
Once arrested, the window for judicial protection for Duterte slammed shut permanently.
The contentious debate, therefore, concerned whether the imminence of irreparable harm, rather than actual deprivation, suffices to trigger the Court’s protective jurisdiction.
The majority of the magistrates may have argued that the Philippines, as a matter of comity and good faith compliance with international norms, must honor the ICC’s arrest warrant.
Hernando argued in favor of constitutional primacy: “An ICC warrant, Interpol Red Notice, Interpol Diffusion, Philippine Center on Transnational Crime communication, diplomatic communication, or executive directive is not a Philippine warrant. It cannot substitute for a warrant issued by a Philippine judge.”
The magistrates also likely clashed over Article III, Section 2 of the Constitution — the guarantee that no arrest may be made except upon a warrant issued by a judge.
The dissenters argued that this provision admits no exception for international tribunals.
The majority may have countered, consistent with the Palace’s position, that treaty obligations and Republic Act 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, created a valid statutory exception.
Hernando fired back with a constitutional challenge to certain provisions of RA 9851 itself.
The government has extensively referred to Section 17 of RA 9851 as providing the legal basis for surrendering a suspect to the ICC “in the interest of justice,” consistent with the Rome Statute’s complementarity principle.
Justice Hernando dismantled this, saying the provision does not state which relevant Philippine authorities exercise the discretion to surrender, the procedure for surrender, the rights of the suspected or arrested person, which evidentiary rule applies, or which custody rules apply. The surrender mechanism is missing.
For Hernando, the bottom line is that if the extradition law doesn’t govern an ICC surrender, and RA 9851 provides no alternative procedural framework, there is no valid domestic legal procedure for the surrender.
Hernando made a convincing point about the primacy of the local judiciary over the ICC, which is a mere complementary tribunal.
The discourse will continue to hound the SC as more ICC actions — coordinated with the Marcos administration — against Duterte allies are expected.
