On March 29, Sen. Francis Tolentino said he had “accepted the proposal” to be counsel of his colleague, Sen. Ronald “Bato” Dela Rosa, before the International Criminal Court (ICC). The Netherlands-based court is poised to look into drug-related crimes during the Duterte administration when Dela Rosa headed the Philippine National Police which enforced the anti-illegal drug campaign.
This needs context in view of a provision in the Constitution prohibiting senators and congressmen from “personally appear(ing) as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.”
During a press conference, Tolentino said:
“I accept the letter of proposal of Senator Dela Rosa to lawyer for him … So I am now speaking as a counsel of Senator Dela Rosa.”
Source: News5, Sen. Tolentino, tatayong legal counsel ni Dela Rosa sa kaso niya sa ICC, March 29, 2023, watch from 0:00 to 0:19
The legislator, who has three Master of Laws degrees from foreign universities, added:
“My role then would be to ensure the protection of Senator Dela Rosa not just within the confines of the ICC — because we’re claiming that they don’t have jurisdiction — but even locally.”
Source: CNN Philippines, Tolentino tatayong abogado ni Dela Rosa sa ICC | News Night, watch from 0:45 to 0:59
Article 6, Section 14 of the 1987 Constitution prohibits members of Congress who are lawyers from personally appearing as counsel before domestic courts. The Term of Office and Privileges of senators allows them to practice law but during trials and hearings, “appearance may be made not by (them) but by other members of (their) law office” in keeping with the constitutional ban.
Solicitor General Menardo Guevarra, in a March 31 interview on GMA News, said it is unclear at this time if the prohibition covers the investigation by the ICC, which is a foreign court based in The Hague. He explained that if Dela Rosa is charged by the ICC and his case goes to trial, another complication is Tolentino’s lack of accreditation.
“Makakabangga naman ni Sen. Tolentino diyan ay — halimbawa, kung ang tinutukoy niya ay all the way hanggang sa trial ng kaso… Baka maging complication ay masabing, ‘Sorry, hindi ka accredited ng ICC. Kailangan na meron munang application na ma-accredit ka namin para makapag participate ka sa trial to be conducted by the Trial Chamber,’” Guevarra explained.
(But Sen. Tolentino may run into complications if, let’s say he is referring to a case [that may be filed against Dela Rosa that goes] all the way to trial. He may run into complications if, for example, the ICC would say: ‘Sorry, you’re not accredited [by the ICC]. You will need to apply for accreditation so you can participate in the trial to be conducted by the Trial Chamber.’)
While Dela Rosa and former president Rodrigo Duterte were named in the ICC prosecutor’s 2021 request to resume the investigation, they have not been named as suspects in the case. (Read VERA FILES FACT CHECK: Bato wrongly claims he is ‘co-accused’ with Duterte in ICC probe)
As of Dec. 20, 2022, former presidential spokesperson Harry Roque is the only Filipino lawyer on the ICC’s official List of Counsel.
According to constitutional expert Michael Yusingco, Tolentino’s decision to represent Dela Rosa before the ICC is a “gray area” since the Constitution’s prohibition applies only to domestic courts.
“Applying it in international tribunals may be a stretch. Or, in simple terms, any conflict regarding this matter will have to be determined by the (Supreme Court),” he wrote in an email to VERA Files Fact Check.
Yusingco also noted that the provision in the Senate’s Term of Office and Privileges applies only if a senator has a law office. “But as regards the prohibition of personal appearance, the same reasoning as with the constitutional prohibition can be applied,” Yusingco said.
The ICC Appeals Chamber denied on March 27 the Philippine government’s request to suspend the prosecutor’s probe while its appeal for the reversal of a January 2023 ruling for the resumption of the probe is ongoing. (Read ICC denies PH request to suspend drug war investigation)
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News5, Sen. Tolentino, tatayong legal counsel ni Dela Rosa sa kaso niya sa ICC, March 29, 2023
CNN Philippines official Twitter, Senador Francis Tolentino tatayong abogado ni Senador Bato dela Rosa…, March 29 2023
Official Gazette, 1987 Constitution, accessed on March 31, 2023
Senate of the Philippines, Term of Office and Privileges, accessed on March 31, 2023
Atty. Michael Yusingco, Personal communication (email), March 31, 2023
GMA News, SolGen Guevarra, nilinaw ang posisyon ng bansa sa imbestigasyon ng ICC | The Mangahas Interviews, March 31 2023
International Criminal Court, List of Counsel Before the ICC, Dec. 20, 2022