Can jailed Duterte be Davao City mayor? Here’s what the law says

A man carries a placard with a cutout of an image of former Philippine President Rodrigo Duterte behind bars, during the 80th birthday of Duterte, who remains in ICC custody for war crimes allegations, in Manila, Philippines, March 28, 2025. —Photo by Lisa Marie David | Reuters

MANILA, Philippines — Former President Rodrigo Duterte overwhelmingly won the Davao City mayoral race last May, despite being locked away at the International Criminal Court (ICC) in The Hague, the Netherlands.

The ex-leader was arrested and turned over to the international tribunal to face allegations of crimes against humanity committed during his administration’s drug war, in which an estimated 12,000 to 30,000 people were killed.

Duterte’s term as Davao City mayor is set to begin on June 30, but he is still detained at the ICC, awaiting his confirmation of charges hearing on September 23.

Can a jailed Duterte take office as mayor?

Here is what the Department of the Interior and Local Government (DILG) says in a position paper by Undersecretary for External, Legal and Legislative Affairs Romeo Benitez:

Benitez said no Philippine law disqualifies Duterte from taking his oath of office despite being detained at the ICC.

In fact, the Constitution, the Administrative Code, and the Local Government Code require all public officials to take an oath of office before assuming duties, the DILG undersecretary stressed.

Further, in a chance interview with reporters in Quezon City last May, DILG Secretary Jonvic Remulla said they recognized Duterte’s victory in the Davao City mayoral race.

READ: Remulla to ask ICC if PH consul could swear in Duterte as Davao mayor

Who can administer Duterte’s oath?

Benitez pointed to Section 41 of the Administrative Code, which provides that the following officers have the general authority to administer oaths of office:

• president
• vice president
• members and secretaries of either house of Congress
• judiciary members
• department secretaries
• provincial governors and vice governors
• city mayors
• municipal mayors
• bureau directors
• regional directors
• clerks of courts
• registrars of deeds
• other civilian officers in the public service of the government of the Philippines whose appointments are vested in the president and are subject to confirmation by the Commission on Appointments
• all other constitutional officers
• notaries public
• barangay chairpersons

“In administering oaths of office, personal appearance is required as the oath needs to be signed in the presence of the authorized official,” Benitez said.

In Duterte’s case, the nearest officials authorized to administer the oath of office are the Philippine ambassador and consul to the Netherlands, he went on.

“Both [are] appointees of the President and subject to the confirmation of the Commission on Appointments,” he added.

J. Eduardo Malaya is the Philippines’ ambassador to the country’s embassy in the Hague.

Can the Philippine ambassador and consul administer Duterte’s oath at the ICC?

Benitez cited Article 6 of the Vienna Convention, which states: “A consular officer may, in special circumstances, with the consent of the receiving State, exercise his functions outside his consular district.”

The Vienna Convention is an international agreement on diplomatic and consular relations, to which the Philippines and the Netherlands are parties.

“The Department, however, shall defer to the existing rules and mechanisms of the Department of Foreign Affairs on this specific authority and the matter of securing ICC permission for said purpose,” Benitez said.

Remulla previously said the DILG will ask the ICC if the Philippines can send a consul to administer Duterte’s oath.

READ: ‘Work from Hague’: Duterte wins mayor’s race, but can he govern?

Will Duterte be able to assume office if he takes his oath?

“If [Duterte] is able to take an oath of office, his detention renders him both physically and legally temporarily incapable of performing his duties and functions as mayor,” Benitez said.

He pointed to Section 46 of the Local Government Code, which provides that the vice-mayor will automatically assume the office as acting mayor.

In this case, Vice Mayor-elect Sebastian Duterte will take his father’s place in an acting capacity.

And who will be his vice-mayor?

The highest-ranking Sangguniang Bayan member will be designated by the DILG secretary as acting vice mayor, Benitez said, citing Administrative Order No. 15 series of 2018.

What happens if Duterte is unable to take his oath?

Benitez pointed to Section 11 of the Batas Pambansa No. 881 or the Omnibus Election Code, which states: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.”

“Having failed to qualify, a permanent vacancy ensues in his office calling for the assumption of the vice-mayor as the new local chief executive and the highest-ranking sanggunian member as vice-mayor, pursuant to Section 44 of the Local Government Code,” Benitez said.

“The DILG shall recognize the validity of the oath of office administered to a public official, including FPRRD, so long as it complies with Philippine constitutional and legal requirements. We shall monitor the developments and act accordingly,” he added.

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