Chief gov’t lawyer

As of yesterday, the word from Malacañang was that Solicitor General Menardo Guevarra still enjoyed the trust of President Marcos and would not be asked to resign.

On the other hand, the “Marites” grapevine is rustling with stories about a headhunt currently underway for Guevarra’s replacement, since he is now reportedly deemed to be unable and unwilling to do his job.

This is if he ever has an epiphany and decides that it’s time to leave the government, easing the numerous burdens on the person who appointed him as “solgen,” Ferdinand Marcos Jr.

Reflecting the closeness of the UniTeam at the start of Marcos 2.0, Bongbong Marcos had recycled Guevarra from being the justice secretary of Rodrigo Duterte to chief legal defender of the government.

Guevarra said he was leaving his fate to the appointing power, the President. The initial word from the Palace was framed in a question: Did Guevarra still consider himself fit for the job of chief government lawyer?

In countries where officials aren’t tone-deaf, resignations would have been tendered forthwith, with no quibbling over the meaning of the word. But this is the Philippines.

BBM, however, is also being faulted in this case for indecisiveness. Some folks say that if he doesn’t want to publicly fire Guevarra, there must be someone in the administration who can tell the solgen in private that his resignation has been accepted by the President.

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Marcos could be hesitating to fire Guevarra over the issue of jurisdiction of the International Criminal Court because it could reinforce accusations from the Duterte camp that it’s been the policy all along of the administration to cooperate with the ICC. But this is a common perception anyway, and BBM may even decide that he wants the country to rejoin the Rome Statute.

Apart from citing the country’s commitments to cooperate with the Interpol, retired Supreme Court senior associate justice Antonio Carpio has pointed out that the administration can cite a provision in Republic Act 9851, the 2009 law governing crimes against humanity and other international humanitarian laws. RA 9851 is guided by international laws, rules, principles, judicial decisions and human rights instruments.

Section 17 of RA 9851, on jurisdiction over accused violators, states: “In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”

Guevarra said his recusal from defending the government in the petition for habeas corpus filed with the Supreme Court was an institutional rather than a personal decision – meaning it’s the position of the Office of the Solicitor General. And meaning the officials ordered by the SC to answer the petitions filed by three children of Rodrigo Duterte would have to find legal counsels outside the OSG, which is supposed to be the “law firm” of the Republic of the Philippines.

The Department of Justice, to which the OSG is attached, has since stepped in as the legal defender.

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Guevarra has his vociferous critics. But from our interviews with him in the past years, he struck me as a person who tried to carry out his mandate within the challenging constraints in the Philippine political environment – as Duterte’s last secretary of justice, and now as solicitor general.

The ICC found it necessary to step in because of what it deemed to be the unwillingness and inability of the Philippine government to prosecute Duterte for his brutal crackdown on illegal drugs.

Duterte enjoyed immunity from suit during his presidency. As Justice Carpio pointed out to “Storycon” on One News last Wednesday, the judiciary could not try accused killers unless complaints were filed by law enforcement agencies and prosecutors filed cases in court after preliminary investigation.

His landslide victory on a campaign promise to exterminate drug personalities within six months emboldened Duterte to carry out his brutal crackdown. He maintained his enormous popularity in those six months and beyond even as the bodies piled up, with many of the dead hogtied and their heads in a plastic bag sealed with packing tape.

Public support for the bloodbath was shaken only after the execution of several teenagers, the youngest of them a 14-year-old fifth-grade boy.

Duterte picked Guevarra as his senior deputy executive secretary at the start of his presidency. In April 2018, Guevarra was appointed justice secretary. He is a co-founding partner of the law firm of Duterte’s executive secretary (and initial legal counsel in the ICC case) Salvador Medialdea.

As justice chief, Guevarra was tasked by Duterte to investigate allegations of extrajudicial killings in the war on drugs. It was the final year of his presidency and it was seen largely as a way to show that there was no need for the ICC to butt in, especially because he had withdrawn the Philippines from the Rome Statute.

The ICC at the time had already started its preliminary review of complaints for possible murder as a crime against humanity in Duterte’s anti-drug campaign.

To this day, no investigation for possible violation of RA 9851 has been initiated by the Philippine government against Duterte and his minions. Most people are unaware that the country has such a law.

Guevarra, in previous interviews, had told us that before a case for crimes against humanity could be pursued, evidence and testimonies were needed to prove that drug-related killings were systematic, widespread and state-sponsored. It was tough getting witnesses and even complainants to put together a case, he said.

The ICC, on the other hand, found its representative case in “one-time, big-time” tokhang sweeps in Bulacan and Caloocan. This is the case for which Duterte may face trial in The Hague.

Guevarra could become collateral damage in the case.