“We’ll find out, in time.”

That was the short response of President Rodrigo Duterte’s justice secretary, Menardo Guevarra, when asked if his drug war reinvestigation will look at the killings as a government policy under the strongman.

The DOJ review has been bannered by Malacañang as proof of a working domestic justice system. The justice department released this week a matrix on 52 out of 7,884 cases of police killings, revealing that abuses were kept internal by the Philippine National Police (PNP).

But presidential spokesperson Harry Roque said the release of the matrixes was proof the government was doing its obligation to investigate.

Roque’s spin was an overture to the International Criminal Court (ICC) whose jurisdiction of the case may be lost if it is proven that the country can investigate on its own.

Romel Bagares, international law professor at the Lyceum University College of Law, said the government might be trying to challenge jurisdiction through the new DOJ matrix, but it has to “hurdle the mirror test.”

The mirror test, Bagares explained, is a ‘same-case, same-suspect’ test. Although technically, the ICC investigation doesn’ have suspects yet, the accusation is that Duterte enabled a policy of killings and coverups with the help of his police chief, drug war architect, now Senator Ronald “Bato” Dela Rosa.

“Thus, DOJ should also probe the two names identified in the Pre-trial chamber ruling authorizing the ICC Prosecutor to investigate the Philippine situation,” said Bagares.

Duterte said Dela Rosa, who has filed his candidacy for president in 2022, is nervous about the ICC.

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DOJ and PNP

Guevarra and DOJ have always been indirect on their answers if they will investigate Duterte.

Asked again on Friday, October 22, if the matrix will now prompt them to look at the big picture of policy, Guevarra said: “To get the picture, let’s wait for what the respondent police officers will say in their defense.”

Lawyer groups which had been investigating the drug war since 2016 said the matrix was not nearly good enough, primarily because it came too late and with only 52 out of 7,884.

“We’ll try to examine as many as we could. It all depends on the manpower resources that we can muster and the extent of cooperation that the PNP will extend to us,” said Guevarra, adding “we may also consider random sampling of cases from all regions.”

Perfecto Caparas, a human rights lawyer based in Indiana, noted that the DOJ’s legal framework doesn’t even use the International Humanitarian Law or Republic Act 9851, which he said would cover systematic killings.

“They’re just using murder or homicide under the Revised Penal Code. That’s wrong, so under the principle of ‘same-actor, same-conduct’ it’s not likely that they can avoid the ICC investigation,” said Caparas in Filipino on Rappler Podcast Law of Duterte Land.

DOJ was able to only produce a matrix of 52 because those were the only case folders the PNP was willing to share, citing Duterte’s concerns on national security.

“Cabinet secretaries are alter egos, and ultimately whatever the review’s decision will be is Duterte’s ratification, or he can reverse it, or void it, all because he’s chief executive,” said Caparas in Filipino.

The ICC investigation is now seeking evidence to identify whom it will issue arrest warrants or summons against. – Rappler.com