SC rejects request to force Duterte to defend PH territory



President Rodrigo Duterte speaks with the population after holding a meeting with key members of the Interagency Working Group on Emerging Infectious Diseases (IATF-EID) at Malacañang Palace on November 23, 2021. Robinson Niñal, presidential photo

MANILA — The Supreme Court has dismissed a lawyer plea to coerce President Rodrigo Duterte to sue China for its forays into the western Philippine Sea.

In a unanimous decision dated June 29 of this year but published on the SC website only on Monday, the SC en banc dismissed for “complete lack of merit” the mandamus petition filed by lawyer Romeo Esmero.

Esmero implicated the president as the sole defendant, but the High Court said he was immune from prosecution.

“Our decision in De Lima v. Duterte is clear: the president is immune from prosecution during his tenure, regardless of the nature of the lawsuit against him. The Applicant has named President Duterte as the sole Respondent in this case. For this reason, this lawsuit should be dismissed out of hand, ”the SC said.

He also noted that a request for the issuance of a writ of mandamus is not the correct remedy.

A plea in mandamus aims to compel the performance of a pre-existing duty, a ministerial function on the part of a counsel, an officer or a person, provided that the applicant has a well-defined and clear right.

Esmero asserted “that it is the president’s ministerial duty to defend the national territory which includes the western Philippine Sea, as established by the United Nations Arbitral Tribunal”, even suggesting that China be sued before the International Court of Justice. justice (ICJ) or bring the case to court. United Nations (UN).

“There is negligence or unlawful inaction on the part of the President in the exercise of his constitutional duty resulting to the detriment of ‘the overriding public interest involves (sic) the livelihoods of all of our poor Filipino fishermen and their families. families who live in the coastal areas of the many islands facing the West Philippine Sea, ”he said in his petition.

But the High Court, in the 9-page ruling drafted by Associate Judge Rodil Zalameda, said the president has discretion to proceed as “the sole body and authority in the country’s external affairs.”

The SC stressed that no law obliges the president to visit the UN or the ICJ, nor did Esmero show a “clear and unequivocal constitutional or statutory provision” prescribing how he should respond. to any threat from another state.

The High Court said former President Benigno Aquino III was not obligated to sue China under the United Nations Convention on the Law of the Sea (UNCLOS) in 2013, which led to a favorable ruling in 2016, invalidating Beijing’s claims over almost all of the South China Sea. , within which lies the West Philippine Sea.

“While President Duterte now sees fit to take a different approach with China despite the said decision, this does not in itself mean that he has, as the petitioner suggests, illegally abdicated his duty to protect and defend our national territory. , which can be corrected by issuing this Tribunal from the extraordinary writ of mandamus, ”the tribunal said.

“As head of state, he is free to use his own discretion in the matter, being responsible only to his country in its political character and to his own conscience,” he added.

The other 13 judges agreed with Zalameda.

The release of the decision came as the Philippines protested another incident of incursion and attack by Chinese authorities in the western Philippine Sea.

Officials said that on November 16, the Chinese Coast Guard blocked and used water cannons on Philippine supply boats at Ayungin Shoal (second Thomas Shoal), one of the nine elements of the Kalayaan island group. occupied by the Philippines.

The Philippines’ position that Ayungin Shoal is within its exclusive economic zone and continental shelf was confirmed by the 2016 arbitration award, according to a maritime law expert.

The United States and other foreign governments have expressed concern over the incident which they believe threatens the peace and stability of the international waterway. They also called on the parties concerned to adhere to the 1982 UNCLOS and the 2016 arbitral award.

China, a signatory to UNCLOS, ignores the arbitration decision.

Duterte overturned the arbitration award in the early years of his administration as he forged a friendlier relationship with China for economic aid and investment. In May of this year, he called it a piece of paper that he will throw in the trash.


Although, in a separate concurring opinion, Associate Judge Marvic Leonen disagreed that the President is immune from any kind of prosecution.

While agreeing that the president’s discretion cannot be prosecuted in mandamus, Leonen said the president should not be immune from lawsuits that demand accountability.

“It’s just immunity from liability, not liability. The responsibility itself is not absolved, but simply deferred until the end of their term, ”he said.

The aim, according to Leonen, is to ensure that the performance of the president’s office is free from disruption, not to protect him from any wrongdoing.

Extraordinary summons such as amparo and habeas data summons should not be covered by immunity.

Leonen had previously opposed the SC’s decision to hold Senator Leila de Lima’s habeas data order against Duterte’s tirades.

De Lima’s petition was dismissed due to presidential immunity, but Leonen argued that immunity does not cover extraordinary summons involving rights violations.

However, since Esmero’s plea in this case involved a mandamus, Leonen voted by majority to dismiss the petition.

No petition to the SC directly challenging the president and his policies has so far been successful.

Previous petitions to compel him to disclose his medical records or question his decision to withdraw from the International Criminal Court without Senate approval have been rejected.

The same goes for petitions challenging Bayanihan’s laws and the government’s response to the pandemic, and forcing the government to conduct mass testing.




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