SolGen recuses self from Duterte’s habeas corpus plea

MANILA, Philippines — The Office of the Solicitor General, the government’s chief legal defender, has recused itself from the habeas corpus cases filed with the Supreme Court by the children of former president Rodrigo Duterte to compel the International Criminal Court (ICC) to release him from detention in The Hague where he is awaiting trial for crimes against humanity.

Solicitor General Menardo Guevarra said they have filed a manifestation and motion for recusal from the three habeas corpus petitions filed by Davao City Mayor Sebastian Duterte, Rep. Paolo Duterte and Veronica Duterte, stressing that the Philippines is under no legal obligation to cooperate with the ICC.

The high tribunal also said it has received a motion to drop Guevarra from the list of respondents in the cases.

In its nine-page motion, the OSG said the country’s withdrawal from the Rome Statute in 2019 had effectively extinguished its obligation to cooperate in ICC proceedings.

“In steadfast adherence to this sovereign decision, 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,” the motion read.

“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,” it added.

It said it would not file a comment on behalf of the respondents of the habeas corpus cases, namely Executive Secretary Lucas Bersamin, Justice Secretary Jesus Crispin Remulla, Philippine National Police chief Gen. Rommel Francisco Marbil and Criminal Investigation and Detection Group director Maj. Gen. Nicolas Torre III.

In filing the habeas corpus petitions, the Duterte siblings sought the release of their father from The Hague detention center in Scheveningen.

Philippine officials had stated that the ICC’s warrant was transmitted through the International Criminal Police Organization (Interpol).

The SC earlier directed the respondents to explain in 24 hours why a writ of habeas corpus should not be issued. Guevarra did not say who will file the respondents’ comment on the case or if there will be a comment at all.

Sara eyes ICC recognition

One of the Duterte siblings – Vice President Sara Duterte – wants to be recognized by the ICC as legal counsel for the former president.

Former presidential spokesman Harry Roque confirmed that the Vice President wanted to be recognized by the ICC “to give her a counsel’s access to an accused while under detention.”

“If VP Sara will apply (to be her father’s counsel), it’s only because she needs access to the (former) president. As a family member, it appears that every visit requires communication with the detention facility,” he said in a mix of English and Filipino.

The former president’s camp earlier confirmed that they are tapping British-Israeli lawyer Nicholas Kaufman, an ICC-accredited lawyer, to be part of his defense team.

But Roque clarified that they have yet to be officially recognized by the court.

“I’m legal counsel for the president because I have given advice to the president on ICC matters. But I have not been officially recognized by the court as counsel… So far, they have only recognized (former executive) secretary Salvador Medialdea,” he added.

Fadi El Abdallah, ICC spokesman, said it’s up to judges to decide on requests by the camp of Duterte.

“Should the defense submit requests, it would be for the ICC judges to decide on it,” Abdallah told reporters.

“Judges will have to decide on many issues between now and the date of a confirmation of charges. We can’t speculate about specific issues, should there be requests, the judges will decide on them,” he added.

The ICC spokesman was responding to requests for comment regarding the plan of Duterte’s legal team to raise issues of jurisdiction and the surrender of the former president to the international tribunal.

During the initial appearance hearing last Friday, ICC Pre-Trial Chamber I Presiding Judge Iulia Motoc declined to tackle the issues raised by Medialdea.

She said Duterte’s camp will have the opportunity to raise these issues during the “full procedure that will unfurl leading up to the confirmation of charges” on Sept. 23.

‘Out of order’

In an interview with “Storycon” on One News, University of the Philippines College of Law assistant professor Michael Tiu Jr. said the manifestation made by Medialdea during the initial appearance of Duterte before the ICC was “unusual,” “out-of-order” and “inappropriate.”

He said the initial appearance hearing was not the time to raise the arguments pointed out by Medialdea.

“(It) is something that we’re used to here. But there, they really are careful about those cases… It was an inappropriate statement for that kind of proceeding,” Tiu, who is also head of the International Criminal Law Program of the UP Institute of International Legal Studies, said.

“It was not some kind of an oral argument where you can raise those things,” he added.

In his manifestation, Medialdea moved to postpone the hearing, citing Duterte’s medical condition and the lack of time to prepare for the hearing.

Medialdea also took an offensive stance against the ICC, describing it as a “troubled legal institution subject to delegitimization and desperate for a prized catch and a legal show.”

He insinuated that the international tribunal “struck an unlikely alliance” with the Marcos administration.

For Tiu, the accusation was not a “very smart (thing) to say because the court is very protective of its integrity and also its legitimacy.”

“But also… maybe the court wasn’t the audience for that statement. They just took the opportunity to speak to somebody else through that medium,” he added.

On the supposed “extraordinary rendition,” Tiu said such cases usually involved individuals who are taken out of the protection of the court.

“Here, there is an entire body of law that protects this particular person. In fact, the court guarantees those rights,” he said.

Retired Supreme Court Associate Justice Antonio Carpio also reiterated a position that the ICC has jurisdiction over Duterte’s case, saying agencies like the Philippine National Police and National Bureau of Investigation which were supposed to investigate drug war killings were “under the control of the president.”

He said no cases were filed against Duterte because he would “naturally never allow himself to be investigated or criminally prosecuted by the agencies under his control.” — Janvic Mateo, Delon Porcalla