Bato Dela Rosa may be arrested even during Senate session, say legal experts

Senator Bato dela Rosa may be arrested even when the Senate is in session, legal experts have said.

According to Joseph Morong’s report in “24 Oras” on Tuesday, the lawyers said that immunity only applied to lawmakers facing charges with a penalty not exceeding six years of imprisonment.

Dela Rosa was placed under the Senate’s protective custody through Resolution No. 44, which provides that Filipinos must be protected against being taken by the government for handover to a foreign state.

It said individuals should be given sufficient time to seek legal relief from the courts before being surrendered or transferred abroad.

The said resolution was adopted in March and signed by then Senate President Vicente Sotto III.

But Atty. Domingo Cayosa, a former president of the Integrated Bar of the Philippines, said that it’s merely a resolution and not a law.

“That is merely an expression of their 'sense' or sentiment, but that solution... it cannot override the Constitution, the existing laws of our country, including our treaty obligations,” Cayosa said.

Under the Constitution, a lawmaker has immunity or cannot be arrested while Congress is in session. However, this only applies to cases with a penalty not exceeding six years.

According to international law experts, this is part of the separation of powers between the three branches of government: the legislature, the executive, and the judiciary.

"In fact, a senator cannot be removed through impeachment or any other means; only the body itself has the power to remove its own members,” international law expert Atty. Michael Tiu.

“So if they decide to protect their members within the premises of their institution, they can do that,” he added.

In the case of Dela Rosa, the penalties involved exceed the six-year threshold.

He is facing "crimes against humanity" charges before the ICC, which carry a potential penalty of life imprisonment. Hence, he can be arrested despite his position.

“If the question is if it’s possible, yes, it’s possible. By force? Yes, it’s possible,” Tiu said. “If you are a member of Congress, you’re not immune from committing heinous crimes, grave offenses.”

“The language of the constitution is clear; it's only limited to cases, punishable not more than six years,” said Romel Bagares, another expert on international law.

In 1990, then Senate President Jovito Salonga prohibited the serving of an arrest warrant against former Senator Juan Ponce Enrile while the Senate was in session.

Despite this, Enrile eventually surrendered to face charges of rebellion complexed with murder, filed by the Aquino administration. Those charges were later nullified.

In 2017, then Senator Leila de Lima surrendered to police outside her Senate office after spending the night there to face drug-related charges. De Lima was eventually acquitted of all the charges.

In 2018, former Senator Antonio Trillanes IV also surrendered inside the Senate for a rebellion charge after former President Rodrigo Duterte revoked his amnesty. The court eventually dismissed his case.

But experts believe that the Senate cannot place Dela Rosa under its custody.

“No, they cannot harbor or shelter him. This is not like an embassy where we waive jurisdiction and are unable to enter,” said Ateneo de Manila University law professor Mel Santa Maria.

“This will be a tug-of-war between the executive and the legislature,” said Bagares. —Vince Angelo Ferreras/NB, GMA News