Justice Carpio: SolGen’s position has become untenable

MANILA, Philippines —  The position of Solicitor General Menardo Guevarra has become “untenable” and President Marcos can fire him for begging off from representing the government in the habeas corpus petitions filed by the children of former president Rodrigo Duterte, retired Supreme Court senior associate justice Antonio Carpio said yesterday.

Duterte is detained in The Hague awaiting trial by the International Criminal Court (ICC) for crimes against humanity.

“There are many ways to fire a person. You ask for the resignation without saying you fire him. The problem (of the government) is that there is no teamwork and they are not on the same page. How can you proceed if everybody is going in opposite directions?” Carpio said in an interview with “Storycon” on One News.

Guevarra earlier said his office had 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.

“I think that is wrong because if you are a public office, a big one, you have your deputy, your assistants, if you have conflict of interest, if you don’t want to handle the case for whatever reason, you should just inhibit or recuse personally so that those under you can represent the agency because you do not constitute the agency, I mean you are the head of the agency and if you say that the agency or the institution is inhibiting, then you deprive the government, especially the President, the legal representation,” Carpio said. He added that the SolGen has only one client, which is the government.

“That is your duty to defend the government in litigation in cases before the Supreme Court and if you say ‘our entire agency is inhibiting,’ who will defend the President now? Of course the President can ask other agencies to defend them, but if you have a problem that is a personal problem of yours, you cannot say the entire institution,” he said.

“Whether you are there or not, your institution should know. The one who will replace will probably change your position. You cannot say it’s the entire position of the institution,” he added.

Moot and academic

At the same time, Carpio said the habeas corpus petitions filed by the Duterte siblings were already moot and academic.

“The habeas corpus is moot and academic. The issue there is whether the act of the government in surrendering Duterte was legal or not,” Carpio added.

Carpio said there were previous cases where the legality of the arrest of an accused was questioned before the ICC.

“(The ICC ruled) it does not matter how you were brought here, you are here now, we can prosecute you. There were many cases where despite the irregularity of the arrest, it will not affect the jurisdiction of the ICC. The ICC said it did not participate (in the arrest). That’s done by the state, they have nothing to do with that,” he said.

Carpio also reiterated his support for the Philippines’ return to the ICC. “I am in favor of rejoining because you saw what happened during the time of Duterte,” Carpio said.

The ICC, he said, was created for situations wherein local authorities are unable or unwilling to prosecute an accused because they are persons in high authority.

“No case has been filed in court (against Duterte) … That’s precisely why we need ICC because it happened to us already during the time of Duterte. Everybody was afraid of him,” he added.

Settled doctrine

Carpio also weighed in on the plan of Duterte’s lead counsel Nicholas Kaufman to question the circumstances surrounding his arrest in the Philippines, saying it was already a “settled doctrine.”

“If he questions the illegality of the seizure, of the arrest of Duterte, he will be running against a tremendous wall. There are many cases already decided by the ICC,” he said.

“Even if you are wrongfully arrested, even if the arrest was tainted by irregularity or illegality, it does not matter for the ICC. As long as you’re presented before the ICC, the ICC will take jurisdiction over your case, and you have to answer the complaint based on the charges against you,” added the former justice.

At Malacañang, Presidential Communications Undersecretary Claire Castro said the President has not yet spoken with Guevarra regarding the latter’s decision. – Janvic Mateo, Daphne Galvez, Alexis Romero