It is up to the Sandiganbayan to determine whether Sen. Rodante Marcoleta voluntarily surrendered or was arrested after a warrant was issued against him, the Department of Justice (DOJ) said on Monday, adding that the distinction becomes relevant only if he is eventually convicted.

Justice Undersecretary Nicholas Felix Ty made the clarification when asked whether Marcoleta's appearance before the Sandiganbayan to file a motion to quash before the warrant was served could qualify as voluntary surrender.

Ty declined to characterize Marcoleta's appearance as either an arrest or a voluntary surrender, saying the matter is for the court to decide.

"We will evade if it was an arrest or voluntary surrender. But what's important to know is that this is the way for the court to get jurisdiction over the accused. It's either arrest or voluntary surrender," Ty said.

He noted that there are instances where the circumstances are not clear-cut, particularly when an accused appears before the court at about the same time a warrant of arrest is served.

"Sometimes, there are situations that are not very clear, especially if the timeline of the accused going to court and serving the warrant of arrest is very close. If that's the case, we will let the court decide if it's really an arrest or a voluntary surrender," he said.

Ty stressed that regardless of how the incident is ultimately characterized, the court has already acquired jurisdiction over the accused.

"Either way, what needs to happen has already happened, which is for the court to acquire jurisdiction over the accused," he said.

He explained that the distinction between an arrest and voluntary surrender becomes significant only if the accused is eventually convicted, as voluntary surrender may be appreciated as a mitigating circumstance in determining the proper penalty.

"If the accused will be convicted, the mitigating circumstance of voluntary surrender will be considered for purposes of assessing the penalty that will be imposed on the accused," Ty said.

He reiterated that only the Sandiganbayan can determine whether Marcoleta's appearance before the court qualifies as voluntary surrender.

Ty also clarified that the issue has no bearing on bail.

"It won't matter for purposes of bail because for bail, what they're looking at is the imposable penalty of the offense that's charged. The mitigating circumstance will only be considered in the sentence," he said.

Marcoleta is facing plunder charges before the Sandiganbayan, where questions have been raised over whether his appearance before the court constituted voluntary surrender or whether he was formally arrested after the warrant was issued.