8 hours ago
2
At the outset, let me just say that I know Solicitor General Meynard Guevarra as a capable, intelligent, decent and honorable person and lawyer. He is highly professional.
I believe him when he said that the motion/manifestation of the OSG was not personal but institutional. But given his high position and previous affiliation, both official and personal, to former President Duterte and former executive secretary Salvador Medialdea, so many speculations and opinions can indeed be engendered. And since the issue is highly political and not merely legal, harsh comments from all sides of the political spectrum can be expected.
But the OSG’s move to retreat, so to speak, appears to be perplexing. This can be easily explained.
When the Supreme Court decides, the decision becomes part of the law of the land. Unless the decision is abandoned, the government, including the OSG, must follow it as a rule of law.
The SC ruling therefore in the case of Pangilinan et al. v. Cayetano et al. (G.R. No. 238875) has become part of the law of the Philippines. It states in no uncertain terms that the ICC “retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date.”
And, because the decision is law, is there really any justification for the OSG to recuse itself? While the OSG can, as the lawyer of the Republic and therefore the people, may in certain cases go against the decision of the administration, should it also be at liberty to go against what is considered as law of the land?
The SC ruling should have already changed the OSG’s contradictory position, not because the OSG has discretion to do it, but because it is now the rule of law to be observed by all.
It cannot adamantly stick to its old position when a subsequent rule of law had already supplanted it. Otherwise the OSG will be allowed to disobey the law at will depending on its institutional decision. This is against its permissible discretion and, surely, OSG knows it.
Significantly, the OSG manifestation does not categorically state that the Pangilinan pronouncement is wrong. Neither did it say that the Supreme Court committed a mistake. It averred that it is their position that “ICC is barred from exercising jurisdiction over the Philippines and that the country’s investigative, prosecutorial and judicial system is functioning as it should.”
But, is this a matter of the ICC “exercising jurisdiction over the Philippines”? Not at all. In fact, the Duterte arrest for alleged crime against humanity was pursuant to a domestic law, Republic Act No. 9851, allowing the government to waive its investigative and judicial jurisdiction and permitting the surrender of a suspect to an international tribunal — a law that, for its implementation, does not expressly and mandatorily require a prior determination of the non-functionality of the Philippines’ prosecutorial and judicial departments and a law that can be applied independently of the Rome Statute.
And even assuming that the reason for the OSG’s non-ICC-jurisdiction argument is based on the complementarity rule that a domestic functioning justice system must first investigate and try Duterte prior to an international body — a position it consistently espoused — there is nothing irregular in a change of view — a new and more relevant stance manifesting that, as a matter of informed decision, it now believes that the Duterte case involving crimes against humanity will be better heard in the ICC because, if done in the Philippines, the risk of destabilization, unrest and political turmoil might worsen.
Certainly, any position of the OSG cannot be so inflexible so as not to even consider that executive decisions are reached after proper vetting of the situation. It is not just a matter of being stubbornly consistent. It is a matter of the day-to-day appreciation of the affairs of state and responding to them in different ways as the situation at hand appropriately demands. Obstinacy often leads to unrealistic and unwise decisions.
At the very moment that one great branch of government, the executive department, makes an informed decision based on readily accessible sources and expert advice, does the OSG — a lesser agency in the constitutional governmental framework — also have a countervailing credible source to oppose the executive department’s decision? Or did the OSG consult the Office of the President prior to the filing of the motion?
And even if there is no international law obligation to turn over Duterte to a foreign tribunal, does not the same international law, and also local law, allow the executive department to waive jurisdiction if warranted, considering that a universal crime is involved, namely crime against humanity?
Because lawful discretion, particularly in international affairs, is lodged in the executive department to choose from many options, should not the choice of one particular option, when already made as a government policy, be supported by the OSG if there was nothing illegal about it? Was not the Duterte arrest enough manifestation of that institutional choice which the OSG should have institutionally understood?
And because the President is constitutionally the chief architect of the country’s foreign policy, the country’s representative in international affairs, how could the OSG, as an institution, go against the institutional decision of the executive department when the OSG is supposed to stand for the rule of law?
Indeed, the OSG’s withdrawal begs more questions than answers, especially when the Duterte cases are connected to the ICC case involving crimes against humanity — specifically, the multiple commission of widespread and systematic murder, torture, and rape against the civilian populace — and when, notably, it has the potential of internationally embarrassing the Philippines before the community of civilized nations. Explanations must further be made for the benefit of the public. Considering the political element of the Duterte arrest that may spawn so much unrest, the OSG owes the public a more acceptable explanation than the so-called “institutional” decision. – Rappler.com
Mel Sta. Maria is former dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.
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