Defending Philippine Sovereignty: Why Senate Resolution 144 Betrays the Constitution and the Nation

By: Arnedo S. Valera, Esquire

On October 1, 2025, the Philippine Senate adopted Resolution No. 144, urging the International Criminal Court (ICC) to place former President Rodrigo Roa Duterte under house arrest on humanitarian grounds. Though framed in compassion, the resolution is a legal and constitutional misstep.

Instead of defending sovereignty, it legitimizes the ICC’s unlawful jurisdiction, ignores the unconstitutional surrender of Duterte to a foreign tribunal, and wrongly characterizes a domestic drug enforcement policy as a “crime against humanity.”

This article contends that Senate Resolution No. 144 is inconsistent with the 1987 Constitution, incompatible with international law, and politically reckless.

Philippine Sovereignty and Constitutional Limits

Article II, Section 1 of the 1987 Constitution provides: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

By appealing to the ICC, the Senate has implicitly recognized ICC jurisdiction over a Filipino citizen despite the Philippines’ 2019 withdrawal from the Rome Statute.

The Supreme Court in Pangilinan v. Cayetano, G.R. No. 238875 (2021), clarified that while the ICC may continue to investigate alleged acts before withdrawal, the Philippines cannot be compelled to cooperate. Resolution No. 144 therefore contradicts the Philippines’ constitutional and jurisprudential framework.

The Unlawful Surrender of Duterte

The Marcos administration’s surrender of Duterte to the ICC violated fundamental principles of due process. It was done:

Without judicial authorization, as required under Art. III (Bill of Rights);

Without compliance with the Extradition Law (P.D. 1069), which requires reciprocity and court review;

Without legislative oversight, contrary to Art. VII, Sec. 21 of the Constitution.

This is extraordinary rendition, prohibited under both Philippine and international law. The Senate’s silence on this unconstitutional act, while debating house arrest conditions, effectively normalizes executive overreach.

 Crimes Against Humanity and the Drug War

1. Rome Statute’s Threshold

Article 7 of the Rome Statute defines crimes against humanity as “widespread or systematic attacks against a civilian population, pursuant to State policy.”

2. Domestic Legitimacy of Philippine Policy

The Philippine anti-drug campaign derives from R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002). It is a legitimate policy to dismantle drug syndicates and protect public order.

While abuses occurred, such as extrajudicial killings, Philippine courts have prosecuted offenders (e.g., the Kian delos Santos case, RTC Caloocan, 2018). This demonstrates that domestic remedies exist, negating ICC complementarity under Article 17.

3. Selective Justice and International Bias

The ICC has singled out the Philippines while ignoring harsher enforcement regimes globally. For more than 62 years, the UN Office on Drugs and Crime has presided over a failed prohibition policy riddled with violence, yet only the Philippines faces ICC prosecution. This illustrates selective jurisdiction and the politicization of international criminal law.

Male Captus Bene Detentus: A Doctrine Rejected by Sovereignty

The ICC may argue that Duterte’s custody remains valid under male captus bene detentus (“badly captured, properly detained”), as applied in U.S. cases such as Ker v. Illinois, 119 U.S. 436 (1886), and Frisbie v. Collins, 342 U.S. 519 (1952).

But this doctrine is inapplicable in the Philippine context:

1. It violates the Bill of Rights (Const., Art. III, Sec. 2).

2. It contradicts international law, which prohibits extraordinary rendition (see Mohammed Alzery v. Sweden, UN HRC, Comm. No. 1416/2005).

3. Philippine jurisprudence has never embraced it; due process under Art. III, Sec. 1 requires lawful custody.

To accept male captus bene detentus would legitimize abduction and unlawful surrender, eroding constitutional protections for all Filipinos.

 Comparative Perspective: Sovereignty and ICC Rejection

The Philippines is not alone in resisting ICC jurisdiction. Powerful states have adopted firm positions safeguarding sovereignty:

United States: Never ratified the Rome Statute. Congress enacted the American Service-Members’ Protection Act (2002), which prohibits U.S. cooperation with the ICC and even authorizes the use of force to free U.S. personnel held by the Court.

Israel: Rejects ICC jurisdiction over its nationals and military personnel, arguing that the Court lacks competence to review domestic law enforcement and security operations.

Russia: Withdrew its signature from the Rome Statute in 2016 and declared it has no obligations toward the ICC, denouncing selective prosecutions.

India and China: Both declined to ratify the Rome Statute, citing sovereignty and the danger of politicized prosecutions.

These states demonstrate that sovereignty remains a legitimate ground for rejecting ICC intrusion. The Philippines, a constitutional democracy with functioning courts, has even stronger reasons to assert this defense.

The Senate’s Missed Opportunity

A principled Senate resolution should have:

1. Affirmed that the ICC lacks jurisdiction post-withdrawal.

2. Condemned Duterte’s unlawful surrender as unconstitutional.

3. Reiterated that abuses in the drug war must be prosecuted in Philippine courts.

4. Rejected male captus bene detentus as inconsistent with due process.

5. Aligned Philippine policy with other sovereign states that reject ICC overreach.

Senate Resolution No. 144 undermines Philippine sovereignty, legitimizes ICC jurisdiction, and obscures the real issue: the illegal surrender of a former president.

The Philippine drug war, though marred by excesses, is a legitimate domestic policy subject to local judicial review. To frame it as a crime against humanity is to distort both law and fact.

Other sovereign states have defended their independence against ICC encroachment. The Philippines must do no less. The true constitutional duty of the Senate is not to negotiate Duterte’s place of detention, but to defend sovereignty, uphold due process, and ensure that only Philippine courts judge Filipinos.

 Citations

Const. (1987), art. II, §1; art. III, §§1–2; art. VII, §21.

Pangilinan v. Cayetano, G.R. No. 238875, March 16, 2021.

Presidential Decree No. 1069 (1977), Extradition Law.

Republic Act No. 9165, Comprehensive Dangerous Drugs Act of 2002.

People v. PO3 Arnel Oares, et al. (Kian delos Santos case), RTC Caloocan, Branch 125, Nov. 29, 2018.

Rome Statute, arts. 7, 17.

UN Charter, arts. 2(1), 2(7).

Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952).

UN HRC, Mohammed Alzery v. Sweden, Comm. No. 1416/2005.

American Service-Members’ Protection Act (U.S., 2002).

Atty. Arnedo S. Valera is  a Co- Executive Director / Founder of the Global Migrant Heritage Foundation and Managing Attorney of Valera & Associates, a U.S. immigration and anti-discrimination law firm he has led for more than 32 years. He is a New York lawyer and Philippine Attorney since 1985.He is a Ford Foundation and Asia Foundation Scholar, holding a master’s degree in International Affairs and International Law and Human Rights from Columbia University, New York, with further training at the International Institute of Human Rights in Strasbourg, France. He earned his Bachelor of Laws from Ateneo de Manila University and his AB in Philosophy from the University of Santo Tomas. A committed educator, he serves as a professor at the San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances. He is also a columnist writer for Inquirer.net and a pro-bono attorney for several nonprofit organizations in the United States.