Despite the Supreme Court (SC) being packed with appointees of former president Rodrigo Duterte, International Criminal Court (ICC) suspect Senator Bato dela Rosa still failed to get his much-needed temporary restraining order (TRO) to block his warrant.

With a 9-5-1 vote, the SC justices ruled that Dela Rosa failed to prove he must be given a TRO.

Six out of 9 concurring justices are all appointees of Duterte, Dela Rosa’s ally. The other two, Leonen and Caguioa, are appointees of the late former president Benigno Aquino III, while Villanueva is the lone appointee of incumbent President Ferdinand Marcos Jr.

Duterte-appointee Gaerlan is the ponente or the resolution’s author. Meanwhile, the five dissenters were all appointed by the former president.

Dela Rosa, a suspect for a crimes against humanity case at the ICC, ran to the highest court of the land to seek a reprieve.

He filed a request for a TRO in November 2025, then went missing for six months. He reappeared only on May 11 to make a crucial vote and elect his ally, Senator Alan Peter Cayetano, as Senate president. After reappearing, he filed supplemental petitions with the SC to nudge his earlier request.

A shooting incident ensued at the Senate on May 13, after which Dela Rosa escaped hours later. He earlier said he would follow the SC decision, but he has been missing since May 14.

By May 20, the SC announced its resolution to deny Dela Rosa’s TRO request. Five days later, on May 25, the SC publicized its resolution. The SC only ruled on the TRO request, and has yet to decide on the full case.

Here’s how and why the SC decided to deny Dela Rosa’s request for interim relief.

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No invasion of rights

A writ of preliminary injunction or TRO is issued when the requester is able to prove that there is extreme urgency and that grave injustice or irreparable injury would be caused, unless such order is issued.

In Dela Rosa’s case, the SC said that he failed to prove that there was an urgent need for a TRO, adding that if there was no legal right in the first place, “there can be no irreparable injury to speak of.”

Dela Rosa also claimed that the ICC warrant threatens his constitutional rights to:

• Liberty
• Be free from unreasonable seizure
• Due process
• Not to be surrendered or removed from Philippine authority
• Effective exercise of legislative functions

The SC said the first three were fundamental, yes, but the last two were questionable. The High Court reiterated that the right to liberty is not absolute and an arrest is lawful when made according to a court order.

The SC said there was no material or substantial invasion of Dela Rosa’s rights and that in the first place, the senator had no clear or unmistakable right to be protected. He was given “protective custody” by the Senate and President Ferdinand Marcos Jr. said on May 13 that there was no instruction to arrest him, so his claims “about invasion of his purported rights is more imagined than real.”

Since there was no irreparable injury, the SC said it was not appropriate to give Dela Rosa a TRO.

Strong opinions from Caguioa, Singh

In a strongly worded opinion, Caguioa — the third most senior justice at the High Court — said the SC should not rescue a government official “charged with mass murder,” and who is being brought to an international court to faces his alleged crimes “that flouted the rule of law with impunity.”

“The Court’s actions should not result in the coddling of those in power, should not allow impunity to continue, as it is, in fact, the last stronghold for the protection of rights for those without it. The Court should strongly guard against being used as a politically convenient doormat, for the wiping clean of those who are charged with blood on their hands,” said Caguioa.

The justice said that in handling the case, the SC must not forget the history of the war that claimed nearly 30,000 lives, according to several human rights groups. Caguioa said the issuance of a TRO for Dela Rosa would cause uncertainty in the ICC proceedings, where drug war victims had put their faith on. He said it’s like stopping the wheels of justice “at the very moment they have finally begun to turn.”

“Due process cuts both ways. To afford immediate protection to one at the expense of so many is to confer privilege and affirm impunity — this is not justice,” said Caguioa.

The justice also said that Dela Rosa failed to prove that he needed interim protection, citing the May 13 Senate shooting incident and Dela Rosa’s escape from the chamber: “First, only Senator Dela Rosa benefited from the confusion and disorder that engulfed the Senate. Second, his claim of a continuing threat to his liberty becomes even more doubtful under the circumstances.”

Citing the landmark ruling of Pangilinan v. Cayetano, Caguioa reiterated that the Philippines is still required to cooperate with the ICC, even if it already ceased from being a signatory to the Rome Statute.

Assuming that the Philippines has no remaining obligations with the ICC, the justice said the warrant is still enforceable through Republic Act No. 9851 or the domestic International Humanitarian Law. Under the said law, the Philippines may surrender a suspect of an international crime to an international court.

“In other words, it is clear that there is no need for a separate warrant from a Philippine judge in order to effectuate an arrest for cases cognizable by the ICC, not only because of the import of Article 59(4) of the Rome Statute, but also because logic dictates so,” Caguioa said.

For the justice, Dela Rosa is also considered a fugitive from justice, so he should not be granted judicial relief. The SC, in Vallacar Transit Inc. v. Yanson case, ruled that fugitives from justice may be barred from seeking judicial reliefs. (READ: Understanding fugitive from justice rule and its relevance to Co’s and Ang’s cases)

“This case will define the Court. For too long, power has found ways to outrun justice. It has hidden in office, in influence, in violence, and now, in the language of due process. That ends here. The Court cannot become a refuge for impunity. It has always been, and must always remain, where justice refuses to yield,” Caguioa said in his closing statement.

In her equally strong concurring opinion, Singh reiterated that crimes against humanity are a grave offense that concern a community of nations. The justice said while section 2 of the 1987 Constitution’s Bill of Rights (Article III) was designed to prevent arbitrary intrusions of local officers, it was not meant to be a shield against international criminal process.

“The ICC is not a foreign police officer trespassing into Philippine territory. It is an international criminal tribunal created by treaty, operating through State cooperation, and directed toward the prosecution of genocide, war crimes, crimes against humanity, and aggression,” said Singh.

Singh also debunked Dela Rosa and his allies’ claim that only a local warrant can be enforced against the senator. The international warrant itself is already enforceable in the country.

“An ICC warrant is not a Philippine warrant for purposes of initiating a domestic criminal prosecution. It is, however, a juridical act issued within an international criminal proceeding that may trigger domestic cooperation under Philippine law,” she explained.

The justice also brought up the doctrine of clean hands, a legal maxim that allows courts to “withhold relief where the applicant’s conduct has been inequitable, unfair, dishonest, fraudulent, or deceitful in relation to the controversy in issue.” For Singh, Dela Rosa’s conduct was tainted with bad faith due to his actions.

“To recall, Senator Dela Rosa evaded legal processes for six months. He then returned to the Senate not to comply with the warrant and face law enforcement, but to vote in a leadership election…. This conduct shows that Senator Dela Rosa only engaged with the legal processes based on his convenience, and reflects inequitable conduct which should bar the grant of the reliefs he seeks,” Singh added.

A local probe?

For Leonen, it’s undeniable that the Philippines has obligations to other states, explaining that under the 1987 Constitution (Article II, Section 2; Article VII, Section 21), international law gains domestic force. He added that Section 17 of RA No. 9851 is permissive, meaning the State has the discretion to surrender a suspect to an international court or to prosecute a suspect.

But while Leonen agrees with the decision, he reiterated that there were many alleged actors involved in the alleged killings — precinct commanders, station chiefs, among others. None of these people are within the ICC’s reach, so there must be a local prosecution.

He explained that if surrender is treated as a substitute rather than a complement, “the consequence is the opposite of accountability.” By cooperating with the ICC through the Rome Statute and RA No. 9851, the Philippine government “provides the good faith assumption” that it will seek accountability for all violations of extrajudicial killings in recent past.

“For if this is not true — that respondents will merely stop at or cannot demonstrate that it is pursuing the other related crimes — the allegations of political persecution might be seen from a clearer light and would weigh into the validity of the detention of petitioner,” said Leonen.

“Its (RA No. 9285) provision on superior responsibility extends command responsibility not only to those at the top but also to every superior who knew, or, owing to the circumstances, should have known, of the crimes and failed to prevent or punish them. lf that provision is to mean anything, it must be applied across the operational pyramid,” he added.

He also said other reliefs like the writ of habeas corpus — a legal remedy against arbitrary detention — may be available for Dela Rosa.

Zalameda, in his separate concurring opinion, said that the Philippines recognized the possibility of cooperating with international courts through RA No. 9851. But he also noted that the country’s extent and manner of obligations with the ICC has yet to be determined.

The justice also pointed out that RA No. 9851 includes both surrender and extradition (the process of sending an individual to another requesting state).

“There is likewise a need to determine the application of the Rules on Extradition Proceedings to a surrender to an international tribunal. The ICC seeks the surrender (instead of extradition) of the person and is independent of extradition treaties. Therefore, it is significant to distinguish between the processes of extradition and surrender,” the justice explained.

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The dissenters

The five dissenters believe that Dela Rosa should be given a TRO or other related immediate legal relief against his ICC warrant.

Inting explained that a status quo ante order (SQAO) — a legal relief used “to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy” — should have been issued because the ICC warrant’s implementation would make the SC case moot.

“I stress that the SQAO must be issued purely to avoid a situation wherein the resolution of the case may be reduced to a paper judgment and would afford no real reliefs to the parties,” the justice explained.

In defending his vote favoring Dela Rosa, Hernando reiterated the claims previously raised by the senator. Hernando claimed there is no domestic process that allows the arrest and surrender of Dela Rosa to the ICC, RA No. 9851’s Section 17 is unconstitutional, and that the ICC has no jurisdiction over the senator’s case.

“…Over and above these reports is his superior constitutional right to be presumed innocent of the charges until proven otherwise. There will be a proper and opportune time for reckoning and for Sen. Dela Rosa to account to these alleged killings,” Hernando said in his dissenting opinion.

For Lazaro Javier, Dela Rosa’s request should have been granted because he was able to show there’s irreparable injury: “The plea for temporary injunctive relief demands a disciplined legal inquiry, and not a referendum on personality, political identity, or public sentiment.”

Meanwhile, Rosario said the issuance of an ICC warrant against Dela Rosa for alleged crimes that happened within Philippine territory “stands on questionable constitutional, statutory, and jurisdictional grounds.”

In his dissenting opinion, Kho, meanwhile, looked into the “surrender” term in RA No. 9851. He said that unlike extradition, there are no specific rules that guide the process of surrendering a suspect to an international court.

“Verily, there is no ‘check and balance mechanism,’ similar to an extradition proceedings, as explained above, wherein an impartial tribunal (i.e., the Judiciary) shall first scrutinize whether the obtaining circumstances indeed necessitate that the Executive surrender the person accused of crimes under Republic Act No. 9851 to the international tribunal,” Kho said. – Rappler.com