By Gerome Dalipe IV
The Supreme Court (SC) has the authority to intervene in former President Rodrigo Duterte’s surrender to the International Criminal Court (ICC) if such actions violate Philippine laws or the Constitution, legal experts said.
Dean Ralph Sarmiento of the University of St. La Salle College of Law in Bacolod City said the SC could issue a temporary restraining order (TRO) to prevent Duterte’s arrest if it determines that cooperation with the ICC infringes on his constitutional rights or domestic legal principles.
Duterte returned to the Philippines on Tuesday, March 11, 2025, from Hong Kong amid heightened international scrutiny.
The ICC’s Pre-Trial Chamber I issued an arrest warrant against him for alleged crimes against humanity linked to his controversial war on drugs.
This makes Duterte the first Philippine head of state to face charges before the international tribunal.
Judicial Authority
The SC has the constitutional power to review executive actions and issue a TRO to prevent irreparable harm while cases are under deliberation.
In landmark cases such as Bayan Muna v. Romulo (2011) and Pangilinan v. Cayetano (2021), the SC upheld its authority to scrutinize foreign affairs actions for compliance with domestic law and constitutional rights.
“A petition from Duterte could argue that ICC cooperation violates his rights to due process and protection against unlawful arrest and detention,” Sarmiento said.
He added that the SC could issue a TRO if credible evidence suggests legal violations or risks of irreparable harm.
Rome Statute and ICC Jurisdiction
Despite the Philippines’ withdrawal from the Rome Statute in 2019, obligations incurred during the country’s membership remain binding.
Article 127 of the statute states that withdrawal does not affect the ICC’s jurisdiction over crimes committed while the country was a State Party.
Sarmiento noted that this principle was affirmed in Pangilinan v. Cayetano (2021), where the SC ruled that treaty withdrawal does not eliminate liabilities for acts committed before the withdrawal took effect.
“The SC would need to determine whether the ICC’s arrest warrant is a valid consequence of obligations incurred during the country’s time as a member of the Rome Statute,” he said.
Role of RA 9851
Republic Act No. 9851, also known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, serves as the country’s domestic legal framework for prosecuting international crimes.
The law emphasizes the principle of complementarity, which allows the ICC to intervene only when domestic mechanisms are deemed inadequate.
“If the government cooperates with the ICC, it could imply an acknowledgment that local processes are insufficient,” Sarmiento said.
However, Duterte could argue that RA 9851 does not authorize the surrender of Philippine citizens to the ICC, particularly after the Rome Statute withdrawal.
The SC would need to resolve this legal ambiguity, he added.
Constitutional Protections
As a former president, Duterte no longer enjoys immunity from suit, as established in De Lima v. Duterte (2019).
However, Sarmiento emphasized that Duterte retains the right to challenge actions that violate his constitutional protections.
“The judiciary serves as the ultimate arbiter in disputes between the executive branch and individuals, particularly when constitutional rights are involved,” he said.
Even if the Philippine government consents to ICC cooperation, the SC retains the authority to review the legality of such actions.
In Pangilinan v. Cayetano (2021), the SC underscored its duty to ensure compliance with the Constitution and domestic laws in executive actions.
