Duterte children petition SC to decide legality of ICC arrest
Former President Rodrigo Duterte’s daughter, Veronica, has asked the Supreme Court to resolve the legality of her father’s arrest and surrender to the International Criminal Court (ICC), regardless if their petition for a writ of habeas corpus is already moot.
Veronica, represented by former chief presidential legal counsel Salvador Panelo, emphasized in a manifestation submitted to the high tribunal on March 14 that their petitions questioning the former president’s arrest should proceed notwithstanding the fact that Duterte is already under ICC custody in The Hague.
The Department of Justice (DOJ), acting as counsel of the respondents in the petitions filed by Duterte’s children, had argued that a writ of habeas corpus is only enforceable within the Philippines and with Duterte in the Netherlands, “[c]learly, therefore, since the relief prayed for could no longer be granted, the consolidated petitions are already moot and academic, warranting their outright dismissal by the Honorable Court.”
Veronica said in a 14-page manifestation that “the respondents cannot escape compliance with a writ of habeas corpus by simply claiming that former President Duterte is no longer in their custody. To allow the same would be to reward the respondents for their illegal and unconstitutional actions.”
She pointed out that the case was “certainly capable of repetition” without undergoing review, citing remarks by Presidential Communications Office Undersecretary Claire Castro, who announced that the Philippine government would also cooperate with Interpol for the possible arrest of Ronald dela Rosa, former police chief who implemented Oplan “Tokhang,” once his ICC warrant of arrest is endorsed.
“This Honorable Court must step in to provide guidance because the DOJ’s oppressive procedure is certainly inconsistent with fundamental tenets of our Constitution,” she said.
Duterte was flown to the ICC headquarters in The Hague last week to face charges of crimes against humanity for his bloody drug war after the government helped the Interpol serve the arrest warrant on him upon his arrival at Ninoy Aquino International Airport from Hong Kong.
DOJ as counsel
Even before the Office of the Solicitor General (OSG) formally withdrew from representing the government in the habeas corpus petitions filed by former President Duterte’s children, Executive Secretary Lucas Bersamin had already directed the DOJ to assume the role.
In a March 14 memorandum—issued a day after the Supreme Court ordered the government to respond to the petitions challenging Duterte’s arrest and transfer to the ICC—Bersamin directed Justice Secretary Jesus Crispin Remulla and the DOJ to represent the government agencies whose officials were named as respondents in the petitions.
The memorandum was attached as an annex to the consolidated compliance that the DOJ filed earlier this week after the OSG sought to recuse itself from acting as the government’s lawyer in the merged cases.
“In the exigency of the service, Secretary Jesus Crispin Remulla, Department of Justice, and his duly authorized representatives are hereby authorized [to] act as counsel for and represent the government agencies whose officials were impleaded as respondents in their official capacities in the following cases before the Supreme Court,” Bersamin said in the document.
The DOJ was tasked to represent the government in three habeas corpus petitions separately filed by Veronica (G.R. No. 278768), Davao City Mayor Sebastian Duterte (G.R. No. 278763), and Davao City Rep. Paolo Duterte (G.R. No. 278798), as well as in the certiorari and prohibition petition (G.R. No. 278747) that Duterte and Senator Dela Rosa filed on March 11 in a last-minute bid to stop the former president’s transfer to The Hague and prevent officials from cooperating with the ICC.
Among the government officials impleaded in the cases are Bersamin, Remulla himself, his brother Interior Secretary Juanito Victor Remulla, Police Gen. Rommel Marbil, Maj. Gen. Nicolas Torre III, Foreign Secretary Enrique Manalo and AFP chief Gen. Romeo Brawner Jr.
‘Tribune of the people’
According to University of the Philippines law professor Paolo Tamase, the OSG has, for years, taken the position that it can refuse to defend the government’s position, invoking its character as “tribune of the people.”
But a clearer basis for its mandate, he said, is found in the Administrative Code, Book IV, Title III, Chapter 12, Section 34, which names the Solicitor General as the “principal law officer and legal defender of the government.”
“Its principal function under Section 35 is to ‘represent the government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the government or any officer thereof in his official capacity is a party,’” Tamase told the Inquirer in an email correspondence.
Tamase pointed out that the OSG has been previously reminded by the Supreme Court that while it enjoys independence, it may not “abdicate [its] function through an arbitrary exercise of [its] discretion,” and that the “withdrawal of appearance on flimsy or petty grounds is tantamount to withdrawing on no grounds at all and to a dereliction of duty,” as stated in the 1992 case of Gonzales v. Chavez (G.R. No. 97351).
“Hence, ‘[u]nlike a practicing lawyer who can decline employment, it has been ruled that the Solicitor General cannot refuse to perform his duty to represent the government, its agencies, instrumentalities, officials and agents without a just and valid reason,’” Tamase said, citing the 2013 case of Republic v. Heirs of Cuizon (G.R. No. 191531).
