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MANILA, Philippines – Solicitor General Menardo Guevarra, the default lawyer of the government in any case filed against it, has opted out of defending the Marcos administration in the Supreme Court petition filed by former president Rodrigo Duterte over his arrest and transfer to the International Criminal Court (ICC).
Guevarra simply said “yes” to Rappler’s message on Monday, March 17, asking to confirm that he had indeed filed a manifestation to recuse. The manifestation, a copy of which had been circulated to media, says that that the Office of the Solicitor General (OSG) cannot defend the government because it has always taken the position that the ICC had lost its jurisdiction over Duterte’s war on drugs.
“The OSG has consistently maintained, both in its submissions before the ICC and in its public statements, that the case of the Philippines was not admissible and that the iCC failed to timely exercise its jurisdiction,” said the manifestation co-signed by Guevarra and his assistant solicitors general.
“Considering the OSG’s firm position that the ICC is barred from exercising jurisdiction over the Philippines and that the country’s investigative, prosecutorial, and judicial system is functioning as it should, the OSG may not be able to effectively represent Respondents in these cases and is constrained to recuse itself from participating herein,” said the manifestation.
This is in regard to the very first petition filed by Duterte, a last-minute relief that they hoped would stop the government from sending him to The Hague. The Supreme Court has already denied any immediate relief — but the case continues in its entirety and merits.
Asked whether he informed Marcos before he filed the manifestation, Guevarra told Rappler such information is covered by executive privilege.
Supreme Court spokesperson Camille Ting confirmed receiving the manifestation, adding that the court “also received a motion to drop Solicitor General Menardo Guevarra as party respondent.”
It’s not clear whether the Department of Justice (DOJ) will step in Guevarra’s place as lawyer for the government, but should they do so, they will likely invoke Philippines’ commitment to the Interpol, and not to the ICC.
The solicitor general’s reply is seen to boost the Duterte camp’s narrative that Marcos’ own solicitor general does not believe in the ICC’s jurisdiction. ICC has detained Duterte over alleged crimes against humanity by murder for the killings in the drug war and by the Davao Death Squad. Duterte supporters already went to town on Monday with a digital file of Guevarra’s submission to the SC.
Marcos and the ICC
But Marcos also believes that ICC has no jurisdiction; he has said this time and again. Even when the plane carrying Duterte took off, Marcos said: “Consistent naman tayo. Hindi tayo tumutulong sa imbestigasyon ng ICC (We’re consistent on this, we do not help the ICC’s investigation)”
“The arrest that we did today was in compliance with our commitments to Interpol. It just so happened that that came from ICC. But it’s not because it came from ICC, it’s because it came from Interpol,” said Marcos late night Tuesday, March 11.
What does it mean, then?
It means that the Marcos government has always taken a hands-off approach on the ICC – whether that’s genuine or not. It is why the Interpol had to enter the picture because Marcos was not willing to hand over Duterte to the ICC when the Philippines is no longer a member.
In fact, it was under Marcos that Philippines even hired a foreign external lawyer – someone who specializes in international criminal law – to convince ICC judges to drop the investigation precisely because of lack of jurisdiction.
Weak point
But Guevarra recusing is a definite weak point in the whole Marcos operation. Guevarra served as Duterte’s deputy executive secretary and justice secretary. He is also a longtime law firm partner of Salvador Medialdea, Duterte’s executive secretary and lawyer in the first ICC appearance. (Read his profile here.)
But does this help Duterte’s legal case? What can the Supreme Court do at this point, now that Duterte has been taken into custody by the ICC?
“The [Supreme Court] cannot take a look at the issue of jurisdiction of the ICC, and in practical terms, can they actually render a decision that says the ICC was wrong in issuing the warrant? They cannot review the ICC, and the manner by which the ICC enforced the warrant,” said Ted Te, a criminal law expert and former spokesperson of the Supreme Court, during a March 14 forum by the University of the Philippines College of Law.
Joel Butuyan, an ICC-accredited counsel representing victims and president of the Center for International Law, said he cannot think of any possible legal framework by which the Supreme Court can make the ICC do anything. Butuyan said this is especially true in the Duterte children’s other three petitions for the writ of habeas corpus, that if ordinarily granted, would compel authorities to “produce the body” of Duterte.
“Imposible nang mangyari ‘yun (That’s impossible to happen). Habeas corpus is premised and predicated on the presence of the person in the Philippines, that he’s in the jurisdiction of our court. Duterte is now in the custody of the ICC, the Supreme Court has no power to issue orders against an international court,” Butuyan said over a panel on Rappler on March 13.
All of these highlight the strategic significance of making sure that Duterte left for The Hague within the day, to put him out of reach of any Philippine court’s jurisdiction.
Does the ICC care?
Duterte is expected to raise the issue of jurisdiction in the next proceedings in the ICC. He has some legal aces up his pocket.
When the Marcos government argued before that the ICC lost jurisdiction, the appeals chamber ruled 3-2 to allow the investigation to continue. The three majority judges ruled on a technicality that jurisdiction wasn’t a proper issue to be solved, and the two dissenting judges believed the ICC had lost jurisdiction when the Philippines withdrew. Lawyers said then that there will come a time that this can be used as part of defense – and now is presumably that time.
Another scenario by which the ICC may care about our local proceedings is when the political winds again change, and local charges are brought up against Duterte. Because the ICC values complementarity, in theory it could say that they are willing to let our local courts handle it.
“I haven’t encountered that situation…but the scenario just might happen. If you go by the principle of complementarity and the [ICC] says ‘hey, they have a change in government, and they’re now in the position to do it [themselves]’ and that’s bona fide, the [ICC] might just say ‘yeah that’s the principle of complementarity,” said Raul Pangalangan, the first and so far only Filipino to serve as an ICC judge. He retired from the ICC in 2021.
“But I don’t know how that can be done procedurally, I mean what would the prosecution say? File a motion to dismiss?…And assuming that it is after the prosecution has completed the presentation of evidence, the court will already have enough information I assume to surmount the test of proof beyond reasonable doubt. I’m completely at a loss – what motion will be filed?” said Pangalangan during the same UP Law forum.
A favorable narrative will benefit the Dutertes as the former president Duterte is running for mayor of Davao City. Before he was arrested, Vice President Sara Duterte joked in Hong Kong she’d also need the same support for the 2028 presidential elections. – Rappler.com
