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MANILA, Philippines – The Philippine government, as well as the Dutertes, are prepared for winning vice mayor Sebastian Duterte filling in as mayor while his father Rodrigo Duterte is detained at The Hague, over alleged crimes against humanity.
The nuts and bolts of Rodrigo Duterte taking his oath of office appear irrelevant because if he continues to be detained, there is no clear structure by which he can serve from his prison cell, even if he’s able to take his oath of office.
When Rappler asked whether International Criminal Court (ICC) rules allow for Duterte to do work beyond researching and commenting on the legal documents related to his case, his lawyer Nicholas Kaufman said on May 15: “The electorate, with its huge show of support, showed that its repudiation of the incumbent regime’s lawlessness at the polling stations was more important than the intricacies of everyday governance from a prison cell.”
Interior Secretary Jonvic Remulla recently said that the Philippine government was working out details on how Duterte can take his oath of office. Asked whether Duterte was still exploring ways that he could serve from detention, or is okay with Sebastian taking over, Kaufman told Rappler on May 27 that “all matters concerning the governance of Davao City are currently under consideration.”
What do the rules say?
Let’s trace all the legalities around this case from the day he filed his certificate of candidacy (COC). When Duterte was arrested and detained in The Hague from March 11 to 12, he was already running for mayor.
Section 12 of the Omnibus Election Code disqualifies a candidate only if that person has been declared by a competent authority as insane, or if that person has been sentenced by final judgment for cases such as “subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude.” Because Duterte has not been sentenced, as in fact he’s awaiting confirmation of charges, Duterte was not disqualified as a candidate.
That’s the same reason why other detainees — such as Apollo Quiboloy — were able to run, and in other cases, why former senator Leila De Lima was able to run for the Senate in 2022 from her prison cell in Camp Crame.
Duterte won as mayor of Davao City on May 12 by a landslide, getting 662,630 votes against opponent Karlo Nograles‘ 80,852. That’s 88% of total votes cast in Davao City where the turnout was 74%.
When Duterte won, everyone acknowledged he would be an absentee mayor. His daughter, Vice President Sara Duterte herself, said so, when asked on May 12 if the scenario is that of an absentee mayor. “Well, definitely, yes. Wala talaga siya dito. So, ang expectation namin ay yes,” the Vice President said. (He’s really not here, so our expectation is yes .)
“Wala namang legal questions diyan eh dahil covered ‘yan ng batas natin eh. Covered ‘yan ng Local Government Code. Kapag wala ang mayor, automatic ang vice mayor ang nagiging acting mayor. So, walang butas sa batas dyan. Klaro ang ating Local Government Code,” said Sara Duterte. (There are no legal questions there because that’s covered by our laws. That’s covered by our Local Government Code. If there’s no mayor, automatically the vice mayor becomes acting mayor. So the law has no loophole. The Local Government Code is clear.)
The Vice President was referring to the rule on succession or Section 46 of the Local Government Code that says the vice mayor “shall automatically exercise the powers and perform the duties and functions of the” mayor who cannot perform his role.
Immediately, Interior Secretary Remulla not only acknowledged that Sebastian will be acting mayor, but also that the acting vice mayor will be the councilor who got the highest votes. “If there are two districts, then the councilor with the highest garnered votes in percentage to registered voters in the district will be vice mayor,” Remulla told Rappler.
That person happens to be Duterte’s grandson, Rodrigo II or “Rigo” the son of Davao City First District Representative Paolo Duterte. When he was proclaimed, Rigo said he was ready to act as vice mayor, “kung ano ang trabaho ng tatay ko, naging vice mayor naman din siya, Tito Baste ko naging vice mayor din, I will follow [in] their footsteps or I will be better, I am ready.” (I will follow in the footsteps of my father who was also a vice mayor, or my uncle Sebastian who was also a vice mayor…or I will be better, I am ready.)
The case of the oath
Section 11 of the election code says the winning candidate has six months to take his oath of office, or else the office becomes vacant. There have been talks to possibly arrange for Duterte taking his oath before a Philippine consular officer in The Hague.
Without giving a direct answer to how this arrangement can take place, Kaufman told Rappler: “there is no statutory provision which would impede the exercise of a civic right by an innocent person.”
However, constitutional lawyers have pointed out that it’s not enough for Duterte to take an oath before a Filipino officer. Lawyers point out that he needs to take it within the physical place of Philippine jurisdiction, which is the embassy of the Philippines in The Hague.
There is no rule in the ICC that explicitly allows this to happen. The registry handbook, which lays out the rules to respect the rights of a detainee, only recognizes that the following people shall have easy and immediate access to Duterte inside the detention cell:
- His lawyer
- Diplomatic or consular representative
- His spiritual adviser
- Medical officers
- Representatives from the ICC’s registry, a chamber, or the presidency
Family members have to apply to visit, but their requests are given “specific attention” compared to the rest.
Unlike national prisons where furloughs are allowed upon application, and when detainees sometimes request to attend to family matters or other important issues, there are no explicit rules in the ICC that would allow Duterte to travel to the embassy. The most explicit existing rule on outside travel is when he is in need of urgent medical care that requires an outside hospital. (Read our FAQs here.)
At most, the ICC has rules on interim release which is more comparable to bail, which Duterte has not applied for yet. The ICC has not yet responded to Rappler’s inquiries whether such arrangements can be made, and if Duterte is able to do governing work inside prison as the handbook only explicitly allows access to computer so he can study and comment on his ICC case. This is different from when Philippine detainees are elected to office, for example De Lima, whose Senate staff had daily access to her in jail, making them the linkage between Camp Crame and her legislative work in the Senate. Even “regular” detainees have the same privilege of serving public office from jail.
There is no other consequence if Duterte is unable to take an oath, because Sebastian is still the automatic officer-in-charge (OIC), election lawyer Emil Marañon told Rappler.
“The rule is really if there is failure to assume office with the mayor, the vice mayor will assume the office. There can be a designated OIC,” Marañon said.
The only other potential consequence of Duterte not being able to perform the duties of a mayor from his prison cell is, it could be used as basis for people to file an administrative complaint against him, which may result in suspension or dismissal.
“He can be liable for habitual absenteeism for example, or the many other administrative case that can be filed against him…In that case, the funny thing would be it’s the Office of the President which has jurisdiction over administrative cases against officials of highly-urbanized cities like Davao,” Marañon said in a mix of English and Filipino. – Rappler.com
