INTERNATIONAL CRIMINAL COURT

The Hague, Netherlands

LEILA DE LIMA and

ANTONIO TRILLANES, et al.;
Petitioners

-vs-

RODRIGO ROA DUTERTE,

Respondent

X---------------------------- -----------------X

RESPONDENT’S POSITION PAPER

Senator Leila De Lima, Senator Antonio Trillanes together with

prominent law practitioners have filed a Complaint against the Philippine
President Rodrigo Roa Duterte before the International Criminal Court (ICC)
relative to the spate of killings in the country. The petitioners among others
have raised the defense that as the Head of State, it is the President who
must be held criminally liable before the ICC considering that he has
commanded the different law enforcement agencies to initiate different
operations to fulfil his campaign promise of incarcerating those drug
offenders and to lessen criminality in the country. Duterte, on the other hand
invoked the state immunity from suit and the doctrine of non-interference.
The ICC assumed jurisdiction over the case and has required the Republic
of the Philippines to file its position paper within one (1) month.
It is the obligation of the respondent’s counsel to answer for any
allegations and accusations put upon against the respondent and to defend
the position of the State.
 FACTS OF THE CASE
President Rodrigo Roa Duterte was voted by most to become the
President of the Republic of the Philippines. People admired Duterte
progress of Davao City, which he ruled as a Mayor, and made it one of the
safest city in the world.
When Duterte seats as the president, as he mentioned during his
State of the Nation’s Address, his promise programs is to control criminality
and to eradicate drugs and corruption in the country. These programs has
somewhat opened the eyes of the people that drugs and criminality is a major
problem of the country.
The Philippine National Police (PNP) was directed to lead in the War
on drugs pursuant to the order of the President, which made into the
Command Memorandum Circular No. 16: PNP “Double Barrel”- Anti-Illegal
Drugs Campaign Project. The memorandum states that the PNP leads the
War on Drugs and grants the different agencies to help in the implementation
of the said Memorandum.
The Operation Tokhang by the PNP results to extra-judicial killings.
Operation Tokhang is the house-to-house search of the Police based on the
list who are allegedly taking drugs or a drug runner. People might refused in
the house to house search, some are armed that. As counted, the killings
are 7000. Human Rights Group are worried about pushing through the said
operation that might double the number of killings.
One of the most controversial killing is the of death of Kian, who is
allegedly into drugs. His family said, that Kian was a good son and has
nothing to do with drugs. The Extra-Judicial killings also violates the Article
3 Sec. 1 of the Bill of rights- No person shall be deprive of life liberty and
property without due process of law nor shall any person be denied of the
equal protection of the laws.

THE ISSUES OF THE CASE

1. Whether or not the International Criminal Court have jurisdiction to
hear the case?
2. Whether or not the president can exercise immunity from
 3. Whether or not the President Rodrigo Duterte must be held criminally
liable killings in the country?

DISCUSSIONS/ARGUMENTS
Doctrine of Sovereign Immunity
According to our constitution, “the Philippines xxx adopts the generally
accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations”.1 This part of our constitution expressly makes the
Doctrine of Incorporation operative.
Another doctrine is incorporated and expressly provided in our
constitution which states that “the state may not be sued without its
consent.”2 This principle is known as the Doctrine of Sovereign Immunity or
Non-suability of the State. It is a generally accepted principle of international
law wherein it is applicable to all nations in the world. As explained, “xxx a
sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no
legal right as against the authority that makes the law on which the right
depends. True, the doctrine, not too infrequently, is derisively called "the
royal prerogative of dishonesty" because it grants the state the prerogative
to defeat any legitimate claim against it by simply invoking its non-suability.
We have had occasion, to explain in its defense, however, that a continued
adherence to the doctrine of non-suability cannot be deplored, for the loss of
governmental efficiency and the obstacle to the performance of its
multifarious functions would be far greater in severity than the inconvenience
that may be caused private parties, if such fundamental principle is to be
abandoned and the availability of judicial remedy is not to be accordingly
restricted.”3 “There is express consent when a law, either special or general,
so provides. On the other hand, there is implied consent when the state
enters into a contract or it itself commences litigation. However, it must be

1 Sec 2, Art II; The 1987 Constitution (emphasis supplied)

2 Sec 3, Art III; The 1987 Constitution (emphasis supplied)
3 Department of Agriculture vs. The National Labor Relations Commission, November 11, 1993, G.R. No. 104269

(citations omitted).
clarified that when a state enters into a contract, it does not automatically
mean that it has waived its non-suability. The State will be deemed to have
impliedly waived its non-suability only if it has entered into a contract in its
proprietary or private capacity. However, when the contract involves its
sovereign or governmental capacity no such waiver may be implied."4
This is the reason why public officials may not be sued for acts done
in the performance of their official functions or within the scope of their
authority. The doctrine of Sovereign Immunity is a generally accepted
principle of international law that is consequently adopted by the Philippines
under the incorporation doctrine. In this case, neither did the president
waived his right nor did he impliedly consented to be sued.

The Jurisdiction of the International Criminal Court

The jurisdiction of the ICC is only limited to some extent. It is provided
in the signed agreement that it has jurisdictions to its signatories (in which
case the Philippines is a signatory). It is provided that:
The Court may exercise jurisdiction in a situation where genocide, crimes
against humanity or war crimes were committed on or after 1 July 2002 and:
 The crimes were committed by a State Party national, or in the territory
of a State Party, or in a State that has accepted the jurisdiction of the
Court; or
 The crimes were referred to the ICC Prosecutor by the United Nations
Security Council pursuant to a resolution adopted under Chapter VII of
the UN charter.
The ICC is intended to complement, not to replace, national criminal
systems; it prosecutes cases only when States do not are unwilling or unable
to do so genuinely.5 It was also stressed that “The ICC does not try
individuals unless they are present in the courtroom.”6
By simply analysing the aforementioned statements, the ICC have taken
an invalid cognizance to hear and try the case filed by the petitioners.
Moreover, the ICC recognize the Doctrine of Sovereign Immunity by limiting

4 Department of Health vs. Phil Pharma Wealth, Inc., February 20, 2013, G.R. No. 182358 (citations omitted)
5 International Criminal Court, About Legal Process; retrieved from https://www.icc-cpi.int/about/how-the-court-
works/Pages/default.aspx#legalProcess (emphasis supplied)
6 The Prosecutor vs. Omar Hassan Ahmad Al Bashir, Pending Case at Pre-trial Stage, ICC-02/05-01/09
their jurisdiction only to states who waive their right to immunity from suit by
accepting the jurisdiction of the Court. In this case, the petitioners have erred
in filing the case to the ICC by not filing the case first to the Philippine’s own
National Criminal and Judicial System.
The ICC does not have jurisdictions over cases which involves
respondents that are not present during trial or those who do not voluntarily
appear before the court to answer for the accusations against them. It
needless to explain the reason why state-party nationals who have cases
pending before the ICC have neither been convicted nor acquitted. It is also
needless to say why majority of cases filed before the ICC are still on their
pre-trial stages.
It is an indispensable requisite that the petitioner/s who desires to file a
case against a state party or a state party national before the ICC, must first
file the case to the state’s court who have primary jurisdiction to hear the
case. If in case, where the state’s court are unwilling or unable to hear it so
genuinely, that would be the only time that the ICC may exercise its
jurisdiction to hear the case. This condition is mandatory and must exist in
pursuance to the ICC’s rules and regulations.

Doctrine of Qualified Political Agency

Another operative doctrine of our law is the Doctrine of Qualified Political
Agency where “department secretaries are alter egos or assistants of the
President and their acts are presumed to be those of the latter unless
disapproved or reprobated by him.”7 It is also ruled out that the acts of the
department secretaries is deemed to be the act of the president when they
are made within the purview of the law and in accordance with the rules and
regulations provided. It is accentuated that “grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction or, in other words, where the power is exercised in an arbitrary
manner by reason of passion, prejudice, or personal hostility, and it must be

7Manubay Agro-Industrial Development Corp. Inc. vs. Secretary of the Department of Agrarian Reform, April 16,
2009, G.R. No. 140717 (citation omitted & emphasis supplied).
so patent or gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.”8
In this case, the President have not acted with grave abuse of discretion.
The truth is, he even made a lawful order to implement his verbal command.
This was made possible through Command Memorandum Circular No. 16-
2016, PNP Anti-Illegal Drugs Campaign Plan Project: “Double Barrel”.
Hence, the president cannot be held liable for the killings if his cabinet
secretary acted beyond what is prescribed by law because the Doctrine of
Qualified Political agency will be inapplicable. The IRR of the memorandum
emphasizes in its Coordinating Instructions specifically on letters “a.)” and
“c.)” that:
a.) Strict adherence to PNP SOPs and Police Operational Procedures is
recommended, and;
c.) Respect for human rights must be observed at all times.9
The first Coordinating Instruction is based on the PNP Handbook while
the second is based on the 1987 Constitution. It is ruled out by the Supreme
Court that “the interpretation of an administrative government agency, which
is tasked to implement the statute, is accorded great respect and ordinarily
controls the construction of the courts. xxx Courts will not hesitate to set
aside an executive interpretation when it is clearly erroneous. There is no
need for interpretation when there is no ambiguity in the rule, or when the
language or words used are clear and plain or readily understandable to an
ordinary reader.”10
In this case, the IRR of CMC No. 16-2016 is neither erroneous nor is it
interpreted beyond the purview of the statute which gave the PNP its Powers
and Functions. Republic Act 6975 otherwise known as “Department of the
Interior and Local Government Act of 1990” is intended to give the different
bureaus and offices under the supervision of the DILG specially the PNP to

8 Arnel L. Agustin vs. Court of Appeals, June 15, 2005, G.R. No. 162571 (citation omitted).
9 DIDM IMPLAN re PNP Anti-Illegal Drugs Campaign Plan Project: “Double Barrel”, 7. Coordinating Instructions,
Page 12 of 12, Issued August 03, 2016 (emphasis supplied).
10 Commissioner of Internal Revenue vs. Bicolandia Drug Corporation, July 21, 2006, G.R. No. 148083 (citations

omitted).
“investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution.”11
Moreover, the first Coordinating Instruction is consequently consistent
and congruent with the PNP Handbook. The Standard Operating procedure
of the PNP sates that “the use of firearm is justified if the offender poses
imminent danger of causing death or injury to the police officer or other
persons. The use of firearm is also justified under the doctrines of self-
defense, defense of a relative, and defense of a stranger. However, one who
resorts to self-defense must face a real threat on his life, and the peril sought
to be avoided must be actual, imminent and real. Unlawful aggression should
be present for self-defense to be considered as a justifying circumstance.”12
Therefore, if police officers have no strict adherence to the rules and
regulations of the PNP, they must be administratively, civilly and criminally
liable for their acts. It is not the president who must be held liable.
Additionally, the president also acted in good faith when he transferred
the role of the PNP to the PDEA. This memorandum was issued in
pursuance to the provisions of RA 9165 which states that “xxx when the
investigation being conducted by the NBI, PNP, or any ad-hoc anti-drug task
force is found to be in violation of any of the provisions of this Act, the PDEA
shall be the lead agency. The NBI, PNP or any of the task force shall
immediately transfer the same to the PDEA xxx.”13 The memorandum was
issued in accordance with the reports and in pursuance to the statute which
gave the PDEA its necessary functions and powers. This only signifies the
president’s intention to act in accordance with the laws.
Therefore, the president having acted in good faith, cannot be held
liable for he did not violate any law. Consequently, he cannot be sued for the
acts he made in accordance with the law.

The Doctrine of Command Responsibility

11 Sec. 24., (c), R.A. 6975 otherwise known as “Department of the Interior and Local Government Act of 1990”.
12 Philippine National Police Handbook PNPM-Do-Ds-3-2-13 (Revised Rule Philippine National Police Operational
Procedures), Rule 8. Use of Firearm during Police Operations, 8.1, Issued December 2013 (underlines & emphasis
supplied).
13 Sec. 86, Art IX, R.A. 9165 as the “Comprehensive Dangerous Drugs Act of 2000” (emphasis supplied).
 An additional IRR was lawfully issued by the DIDM which highlighted
that the “Doctrine of Command Responsibility shall be applied to police
commanders who failed to report in 1 hour and exercise supervision and
control over operating units conducting operations specially those cases of
armed confrontation.”14
Hence, if the police officers acted illegally, the president is not the right
person to be sued. It is contained within the Doctrine of Command
Responsibility that “any government official or supervisor, or officer of the
Philippine National Police or that of any other law enforcement agency shall
be held accountable for “Neglect of Duty” xxx if he has knowledge that a
crime or offense shall be committed, is being committed, or has been
committed by his subordinates, or by others within his area of responsibility
and; despite such knowledge, he did not take preventive or corrective action
either before, during, or immediately after its commission.”15

Summary
Based on the discussions presented, the person who must be held
liable is not the president and subsequently not the proper party to be sued.
The police officers, who do not strictly follow the Standard Operating
Procedure, should be the individuals to be sued and be held administratively
civilly and criminally liable. The supervisors and commanders should also be
held administratively liable if they had presumed knowledge that their
subordinates are committing crimes and offenses because of neglect of duty.
Lastly, it is the secretary that must be held liable for the consequences of his
commands if it will be proved that he acted with grave abuse of discretion.
The order of the persons to be held criminally must start from the
bottom and end at the top and not the other way around. It is improper, illegal
and incorrect to directly sue the president for acts he did not commit. The
plain fact that the president issued lawful order excludes him from the list of
individuals who must be held liable for the spate of killings in the country.

14Investigative Directive No. 2016-12, 4. Guidelines, (c), Page 2 of 5, Issued July 22, 2016 (emphasis supplied).
15Executive Order No. 226 (Institutionalization of the Doctrine of “Command Responsibility” in all Government Offices
Particularly at All Levels of Command in the Philippine National Police and Other Law Enforcement Agencies), Sec 1.
Neglect of Duty Under the Doctrine of “Command Responsibility”, Page 1 of 2, Issued May 12, 1995.
 In summary, the respondent petitions for the motion to dismiss the
case because:
a. ) the President legally invokes his right to immunity from suit in
accordance with the Doctrine of Sovereign Immunity;
b. ) of lack of jurisdiction of the court to hear and try the case in
accordance with international principles and in pursuance to the signed
agreement of the signatory states of the Rome Statute;
c. ) the petitioners’ have wrongfully filed the case to the improper court
and did not resort to the Philippines’ own original jurisdiction to hear
the case;
d. ) the president is not the proper party to be sued and may not be held
liable in relation to the spate killings in the country; and
e. ) the president having acted in good faith lawfully issued
memorandums in accordance with pre-existing laws.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed from this
Honourable Court that judgment be rendered in favour of the respondent’s
petition for the motion to dismiss the case filed before the court with the
following terms and conditions:
a. ) Ordering the petitioners to withdraw the case filed before this
Honourable Court;
b. ) Ordering the petitioners that should they file a suit, they must file
the case to the proper court of the Philippines having the primary
jurisdiction to hear and decide over the controversy; and
c. ) Ordering the petitioners that should they file a suit, it must filed be
against the proper parties and not against the respondent.
Such other reliefs considered to be just and equitable under the
circumstances are also prayed for.

Tuguegarao City, Cagayan, Philippines, November 03, 2016.

VERIFICATION CERTIFICATION
 I, RODRIGO ROA DUTERTE, of legal age, after having been duly
sworn in accordance with law, depose and state that:
1. I am the respondent in the above-stated case;
2. I caused the preparation of the foregoing response for the complaint;
3. I have read the contents thereof and the facts stated therein are true
and correct of my personal knowledge and/or on the basis of copies of
documents and records in my possession;
4. I have not commenced any other action or proceeding involving the
same issues before the Supreme Court, the Court of Appeals, or any other
tribunal or agency;
5. To the best of my knowledge and belief, no such action or
proceeding is pending before the Supreme Court, the Court of Appeals,
or any other tribunal or agency;
6. If I should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals,
or any other tribunal or agency, I undertake to report that fact within five
(5) days therefrom to this Honourable Court.
In WITNESS WHEREOF, I have hereunto affixed my signature this 3rd
day of November, 2017 at Tuguegarao City, Philippines.

RODRIGO ROA DUTERTE

Defendant

By:
KRESIME NICOLE ASIRIT GARMA
Counsel for the Respondent