SC junks plea: Duterte has discretion on how to defend West Philippine Sea

Kristine Joy Patag - Philstar.com
SC junks plea: Duterte has discretion on how to defend West Philippine Sea
President Rodrigo Roa Duterte presides over a meeting with the Inter-Agency Task Force on the Emerging Infectious Diseases (IATF-EID) core members prior to his talk to the people at the Arcadia Active Lifestyle Center in Matina, Davao City on November 2, 2021.
Presidential Photo / Roemari Lismonero

MANILA, Philippines — The Supreme Court has dismissed a petition seeking to compel President Rodrigo Duterte to defend national territory, including the West Philippine Sea, against Chinese incursions.

The SC voted unanimously to junk the Petition for Mandamus filed by lawyer Romeo Esmero for “utter lack of merit.”

The SC said that Esmero argued to the SC that President Rodrigo Duterte, named as sole respondent in the case, has “ministerial duty of the President to defend the national territory which includes the West Philippine Sea.”

The petition also asserted that is an exception to the general rule on presidential immunity from suit.

Esmero also said that the filing of diplomatic protests — which the Department of Foreign Affairs has been doing — is not a defense of the country. The Philippines must “go to the [United Nations] Security Council and invoke the [U]niting for [P]eace [R]esolution of 1950’ and sue China before the International Court of Justice to demand payment and damages for taking the Kalayaan Islands.”

The court stressed that a petition for mandamus would only prosper if the petitioner can be shown that the subject of the plea is a ministerial act or duty of the person.

The petitioner, however “has failed to point to any law that specifically requires the President to go to the UN or the ICJ to sue China for its incursions into our exclusive economic zone,” the tribunal said.

“Neither has he shown a clear and unmistakable constitutional and statutory provision which prescribes how the President is to respond to any threat (actual or imminent) from another State to our sovereignty or exercise of our sovereign rights,” the court added.

Associate Justice Rodil Zalameda wrote the ruling promulgated June 29, but was uploaded on the SC website only on November 22.

The ruling was released days after two Filipino boats were supposed to deliver supplies to the BRP Sierra Madre stationed at Ayungin Shoal when they were blocked and water-cannoned by three Chinese Coast Guard ships, forcing them to abort their resupply mission.

President Rodrigo Duterte and the Department of Foreign Affairs have since denounced the incident, with the chief executive raising it during the ASEAN-China Special Summit to Commemorate the 30th Anniversary of Dialogue Relations.

President's discretion

The SC however said that with the petitioner only having Duterte as a sole respondent, it should be dismissed outright. The SC cited its De Lima v. Duterte ruling that “the President is immune from suit during his incumbency,” regardless of suit filed against him.

But even if the SC would consider the case filed against the Executive Secretary, the court said “a writ of mandamus would still not lie in the petitioner’s favor.”

It also said that while the late President Benigno Aquino III availed of the legal mechanism under the United Nations Convention on the Law of the Sea, he “was under no obligation, certainly not one coercible via a writ of mandamus, to file a case against China.”

If Duterte opts for a different approach with China, it would not mean that he has “unlawfully abdicated his duty to protect and defend our national territory, correctible with the issuance by this Court of the extraordinary writ of mandamus," it said.

The court said that the decision on how to best address the country’s disputes with China ultimately rests on the government’s political branches.

It added that the Constitution vests the President — not the court — with executive power on how to protect the Philippines and conduct foreign affairs.

“Barring violations of the limits provided by law and the Constitution, we should take care not to substitute our exercise of discretion for his. As ‘the branch that knows least about the nationals security concerns that the subject entails,’ we cannot, in the words of Justice Scalia, just simply ‘blunder in,’” the SC also said.

Petitions vs Duterte

Associate Justice Marvic Leonen wrote a separate concurring opinion where he stated that while he agreed that matters within the President’s discretion cannot be subject of a writ of mandamus, he however takes exception to the main ruling’s “allusion that a sitting President cannot be subject to any type of suit.”

The justice cited his separate opinion in De Lima v. Duterte where he maintained that presidential immunity is not absolute. “It is merely immunity from liability, not accountability. The liability itself is not absolved, but merely deferred until the end of their tenure in office,” Leonen added.

Leonen and Associate Justice Alfredo Benjamin Caguioa dissented in the SC’s ruling on Sen. Leila De Lima’s motion for reconsideration on the dismissal of her petition for writ of habeas data against Duterte.

The SC has also dismissed the petition to compel the release of Duterte’s medical bulletins and pleas challenging the Philippine government’s withdrawal of its ratification of the Rome Statute that established the International Criminal Court.

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