"Legal Commentary on Duterte’s Arrest, Executive Privilege, and Interpol Red Notice Obligations
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The Senate’s third hearing on April 8, 2025, into former President Rodrigo Duterte’s arrest and transfer to The Hague, coupled with Supreme Court cases filed by his family, has thrust executive privilege, ICC jurisdiction, and Interpol obligations into the spotlight. The Philippine government defends the arrest as compliance with an Interpol Red Notice tied to an ICC warrant, escalating tensions with legislative and judicial branches. This commentary examines these issues, integrating Republic Act 9851, the 2018 ICC withdrawal, and Interpol duties.
Executive Privilege and Judicial Scrutiny
Executive privilege, inferred from Article VII of the 1987 Constitution, protects sensitive communications, a shield Malacañang wields to excuse officials like Secretaries Remulla and Teodoro from Sen. Imee Marcos’ inquiry into Duterte’s arrest. The Senate invokes Article VI, Section 21 for legislative oversight, while Duterte’s family petitions the Supreme Court, alleging an illegal arrest without judicial process (e.g., habeas corpus). The government’s claim of fulfilling Interpol duties adds a layer of international law, testing privilege against constitutional and global obligations.
Interpol Red Notice and Philippine Duties
The Philippines, an Interpol member since 1950, asserts it acted under Interpol protocols by enforcing a Red Notice—an international request to locate and arrest a suspect—issued pursuant to an ICC warrant for Duterte’s drug war crimes. Interpol’s Constitution, Article 2, mandates cooperation to prevent crime, and Red Notices, while not binding arrest warrants, oblige members to act per domestic law. The Philippine National Police, under Republic Act 6975, executes such requests, but the government’s compliance claim post-ICC withdrawal raises legal questions.
The Philippines exited the ICC on March 17, 2019, after Duterte’s 2018 notice, per Article 127 of the Rome Statute. Though the ICC retains jurisdiction over pre-withdrawal crimes (1998-2019), Article 59—requiring member states to arrest and surrender suspects—arguably lapsed for the Philippines. The government’s reliance on Interpol duties sidesteps this, framing the arrest as a distinct obligation. Yet, Republic Act 9851, Section 17, allows waiving domestic prosecution if an international tribunal acts, a provision tied to active ICC membership. Post-withdrawal, its applicability wanes unless Interpol duties independently justify the arrest—a theory the Supreme Court may probe.
Philippine and American Jurisprudence
*Senate v. Ermita* (G.R. No. 169777, April 20, 2006) upheld executive privilege but required specificity and a balancing test against legislative need. The Executive’s broad invocation here, tied to Interpol compliance, may falter if the arrest breached Article III due process (Sections 1, 14). *Neri v. Senate* (G.R. No. 180643, March 25, 2008) protected diplomatic secrets but linked privilege to legislative purpose—here, possibly refining ICC or Interpol laws. The family’s habeas corpus plea aligns with *Roque v. De Venecia* (G.R. No. 193809, June 19, 2012), prioritizing judicial oversight, potentially voiding privilege if illegality is found.
In *United States v. Nixon* (418 U.S. 683, 1974), the U.S. Supreme Court rejected absolute privilege, favoring judicial need—a principle relevant if the Supreme Court deems the Red Notice enforcement unconstitutional absent domestic review. These cases suggest privilege bends to higher imperatives, including international duties tempered by local law.
Interpol vs. ICC Obligations Post-Withdrawal
While Article 59 duties may not bind the Philippines post-ICC exit, Interpol membership persists. Red Notices facilitate arrests, but Interpol’s Constitution, Article 3, prohibits political interference, and Duterte’s case—rooted in his presidency—may test this. The government argues compliance with Interpol protocols overrides ICC withdrawal, yet no domestic law post-R.A. 9851 mandates ICC surrender absent membership. If the Supreme Court finds the arrest bypassed judicial safeguards (e.g., Rule 102, Revised Rules of Court), it could rule it ultra vires, deeming privilege a shield for illegality rather than Interpol duty.
Constitutional Crisis Risk
The Supreme Court cases amplify crisis potential. If the Senate enforces subpoenas, the Executive resists citing privilege and Interpol obligations, and the Court voids the arrest—perhaps finding R.A. 9851 inapplicable or Red Notice enforcement unlawful—a deadlock emerges. Senate President Escudero’s caution mirrors past clashes (e.g., E.O. 464), signaling peril: a ruling against the Executive could expose officials, while upholding privilege might weaken checks. Without accord—via limited disclosure or judicial clarity—governance and public trust risk collapse.
Conclusion
Duterte’s arrest intertwines executive privilege with ICC and Interpol duties. The government’s Red Notice defense, post-ICC withdrawal, hinges on Interpol protocols, yet R.A. 9851’s waiver and Article 59’s lapse muddy its legality. Jurisprudence like *Ermita* and *Nixon* demands privilege specificity, vulnerable if due process was skirted. The Supreme Court’s ruling on the family’s petitions could redefine Interpol enforcement and inter-branch dynamics. Filipino lawyers must watch this saga, as it reshapes constitutional and international law boundaries."
