MANDATE BETRAYED: THE LEGAL AND CONSTITUTIONAL DUTY TO UPHOLD MAYOR DUTERTE’S RIGHT TO OATH AND OFFICE
The overwhelming electoral victory of former President Rodrigo Roa Duterte as Mayor of Davao City in the 2025 midterm elections is a resounding reaffirmation of his deep mandate and legitimacy from the people of Davao. Yet, his continued unlawful detention by the International Criminal Court (ICC)—through the extraconstitutional and unauthorized surrender by the Philippine government—poses a direct challenge not only to his right to assume office but to the very sovereignty and constitutional order of the Republic of the Philippines.
This article asserts, through Philippine constitutional doctrine, jurisprudence, and applicable international principles, that Mayor Duterte must be allowed to take his Oath of Office. The Philippine government has the legal duty to make diplomatic arrangements to facilitate this, including utilizing the Philippine Embassy in The Hague as the venue for the administration of the oath. Denying this would violate the most fundamental principles of constitutional democracy, including the presumption of innocence, the ministerial character of oath-taking, and the sovereignty of the Filipino electorate.
I. Ministerial Nature of Oath-Taking and the Constitutional Duty to Facilitate It
Article XI, Section 1 of the 1987 Constitution provides that “[p]ublic office is a public trust.” As such, before a public officer may enter into the execution of official duties, Section 41 of the Revised Administrative Code and Article VII, Section 5 of the Constitution require the taking of an Oath of Office. This requirement is not ceremonial but foundational.
In Benito v. Commission on Elections, G.R. No. 134913 (Jan. 19, 2000), the Supreme Court held that a duly proclaimed candidate may assume office upon taking the oath, even if challenged by a pending election protest. The Court affirmed that proclamation entitles a candidate to assume office, and the oath cements that entitlement. Similarly, De la Cruz v. COMELEC, G.R. No. 129437 (July 19, 2000), held that the administration of the oath to a proclaimed winner is a ministerial function and cannot be arbitrarily withheld.
Hence, any duly authorized official—particularly the Vice President of the Philippines—has the legal duty to administer the oath to Mayor Duterte. That duty cannot be frustrated by administrative hesitation or political interference.
II. Diplomatic Arrangement for Oath-Taking: Philippine Embassy as Sovereign Ground
Under the Vienna Convention on Diplomatic Relations (1961), diplomatic missions enjoy the privilege of inviolability and are treated as extensions of the sending state’s sovereign authority. The Philippine Embassy in The Hague thus qualifies as Philippine territory for official purposes.
It is both legal and practical for Mayor Duterte’s oath-taking to be held at this Embassy, especially if he is granted temporary release by Philippine authorities under the principle of comity and respect for international obligations. The precedent set by Pimentel III v. Office of the President, G.R. No. 158088 (July 6, 2005), reinforces the validity of acts done by Philippine officials beyond national territory if done under constitutional and lawful authority.
Furthermore, COMELEC Resolution No. 8453 and related issuances governing Overseas Absentee Voting recognize and affirm the authority of Philippine embassies to perform electoral acts—including oaths, registration, and canvassing. These are recognized venues for official duties of the Philippine state.
III. The People’s Sovereignty and the Presumption of Innocence
Mayor Duterte’s election victory is not subject to speculation. He has been proclaimed and no credible contest exists to question the outcome. The Supreme Court, in Limbona v. COMELEC, G.R. No. 205103 (March 25, 2015), affirmed that the will of the electorate must be upheld unless nullified by a final judgment.
Further, the presumption of innocence enshrined in Section 14(2), Article III of the 1987 Constitution, protects every accused—including those under investigation or even indictment. In People v. Sandiganbayan, G.R. No. 96028 (July 16, 1991), the High Court reiterated that the presumption of innocence continues even through trial, and certainly applies to pretrial detention.
Mayor Duterte has not been convicted of any offense by any court of law—domestic or international. His continued detention by the ICC, in the absence of a final and binding judgment and without an enabling law giving effect to ICC jurisdiction post-withdrawal, is constitutionally infirm. To deny his oath-taking is to render a judgment of guilt where the law provides none.
IV. The Unconstitutional Surrender to the ICC and Breach of Sovereignty
In Executive Secretary v. Sandiganbayan, G.R. No. 220598 (Apr. 17, 2018), the Supreme Court upheld the executive power to withdraw from international treaties without Senate concurrence. The Philippine government’s withdrawal from the Rome Statute became effective on March 17, 2019. Thereafter, the Philippines ceased to be a State Party to the Rome Statute, and the ICC ceased to have jurisdiction over new cases, unless falling under the temporal jurisdiction prior to withdrawal.
However, even assuming arguendo the continuation of jurisdiction for acts prior to withdrawal, the doctrine of complementarity—the cornerstone of the Rome Statute—mandates that the ICC can only exercise jurisdiction when national courts are unwilling or unable to genuinely carry out investigations or prosecutions.
The Philippine judicial system remains operational and capable. No finding has been made by any competent tribunal that the Philippines is unable or unwilling to prosecute. Therefore, the surrender of Mayor Duterte to the ICC, absent judicial authorization or a law reinstating Philippine ICC obligations, is a blatant breach of sovereignty.
As the Supreme Court emphasized in Bayan v. Zamora, G.R. No. 138570 (Oct. 10, 2000), “sovereignty resides in the Filipino people and all government authority emanates from them.” The surrender of a Filipino citizen to a foreign tribunal, without legal basis and against the manifest will of the people, constitutes a betrayal of this sovereignty.
V. Legal Duty of the Philippine Government to Facilitate the Oath-Taking
The Philippine government, under the Administrative Code and COMELEC rules, has the affirmative duty to ensure that a duly elected official is able to assume office. This includes ensuring that the Oath of Office is administered in a timely and legal manner.
The Department of Foreign Affairs and the Department of Justice, in coordination with the Office of the President and the COMELEC, must initiate and facilitate diplomatic arrangements for Mayor Duterte’s oath-taking. Failure to do so may constitute grave abuse of discretion amounting to lack or excess of jurisdiction, as prohibited under Rule 65 of the Rules of Court.
Conclusion: For Law, for People, for Nation
Mayor Rodrigo Roa Duterte is not merely a candidate. He is the elected Mayor of Davao City. His right to take his Oath of Office is not negotiable—it is a constitutional entitlement and a duty owed by the Republic to one of its citizens.
To allow foreign pressure or flawed international processes to override the Philippine Constitution is to renounce the very essence of our sovereignty.
This is not just a matter of individual rights. It is a test of our national integrity, our fidelity to law, and our commitment to the democratic will of the people.
Let the oath be administered. Let the will of the people be fulfilled. Let the Republic of the Philippines stand sovereign, proud, and free.
About the Author:
Atty. Arnedo S. Valera is the executive director of the Global Migrant Heritage Foundation and managing attorney at Valera & Associates, a US immigration and anti-discrimination law firm for over 32 years. He holds a master’s degree in International Affairs and International Law and Human Rights from Columbia University and was trained at the International Institute of Human Rights in Strasbourg, France. He obtained his Bachelor of Laws from Ateneo de Manila University. He is a professor at San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances. Rev. Valera is also an ordained evangelical minister, non-denominational.
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