SC has no power to compel Duterte on what actions to do on West PH Sea issues

Published November 24, 2021, 9:48 AM

by Rey Panaligan 

Supreme Court (SC)

The Supreme Court (SC) has declared it has no power to compel President Duterte on what specific actions he should do to “defend the national territory, which includes the West Philippine Sea (WPS), against Chinese incursions.”

With its declaration, the SC dismissed the petition for mandamus filed by lawyer Romeo M. Esmero who named the President as the sole respondent.

Mandamus is “a special civil action brought by an aggrieved party against a tribunal, corporation, board, officer or person unlawfully neglecting the performance of an act which the law specifically requires as a duty resulting from an office, trust or station.”

Esmero told the SC his petition should be an exception to the general rule on Presidential immunity from suit.

He said it is the prime duty of the government “to serve and protect the people and their rights, including those to the national territory.”

“Given China’s aggression, the President is not prohibited from (and by implication, should consider) engaging in a defensive war and, in so doing, call upon the people to defend the State against China’s aggression,” he said.

“There is unlawful neglect or inaction by the President in the performance of his constitutional duty resulting to the detriment of “paramount public interest involving the livelihood of all of our poor Filipino fishermen and their families who are living in the coastal areas of the many islands facing the West Philippine Sea,” he also said.

At the same time, Esmero said “the filing of diplomatic protests against China is not a defense by our country on the issue of the West Philippine Sea.”

He told the SC “the proper way for the Philippines to act now is to go to the United Nations Security Council and invoke the Uniting for Peace Resolution of 1950 and sue China before the International Court of Justice (ICJ) to demand payment and damages for taking the Kalayaan Islands.”

The SC decision (GR No. 256288, June 29, 2021; uploaded Nov. 22, 2021), written for the full court by Associate Justice Rodil V. Zalameda, could have dismissed Esmero’s petition outright since the President is immune from suit, regardless of the nature, during his incumbency.

“Even if for the sake of argument, the Court was inclined to overlook this fatal flaw and consider the case filed against the Executive Secretary, as the representative of the President, if only to save the petition from perfunctory dismissal, a writ of mandamus would still not lie in petitioner’s (Esmero) favor,” the SC said.

Resolving the issue and citing American jurisprudence and legal literature, on top its decided cases, the SC said:

“Indeed. the President is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction.

“By constitutional fiat and the intrinsic nature of his office, the President is also the sole organ and authority in the external affairs of the country.

“As the sole organ of our foreign relations and the constitutionally assigned chief architect of our foreign policy, the President is vested with the exclusive power to conduct and manage the country’s interface with other states and governments.

“In addition to treaty-making, the President also has the power to appoint ambassadors, other public ministers, and consuls; receive ambassadors and other public ministers duly accredited to the Philippines; and deport aliens.

“Petitioner submits that it is the ministerial duty of the President, as part of his mandate to enforce the laws and see to their faithful execution, to ‘defend’’ the national territory by going before the United Nations (UN) to ask the latter to send ‘UN Patrol Boats xx x to protect our fishermen.’

“It is also petitioner’s view that the Philippines should ‘sue China with (sic) the International Court of Justice (ICJ) and demand that China should pay for the Kalayaan Islands which it took from us for trillions of Dollars in damages.

“For all his posturing, however, petitioner 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 (EEZ). Neither has he shown a clear and unmistakable constitutional or 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.

“Petitioner himself noted that a case had in fact been filed by the Philippines to vindicate its rights in the West Philippine Sea. In 2013, after years of unsuccessful attempts to reach a settlement through political and diplomatic channels and amid rising tensions in the region, former President Benigno S. Aquino decided to avail of the legal mechanism under the United Nations Convention on the Law of the Sea (UNCLOS).

“On 12 July 2016, the arbitral tribunal issued an Award overwhelmingly in favor of claims by the Philippines and ultimately bringing some clarity to the overlapping claims in the area.

“If President Duterte now sees fit to take a different approach with China despite said ruling, this does not by itself mean that he has, as petitioner suggests, unlawfully abdicated his duty to protect and defend our national territory, correctible with the issuance by this Court of the extraordinary writ of mandamus.

“Being the Head of State, he (President Duterte) is free to use his own discretion in this matter, accountable only to his country in his political character and to his own conscience.

“Ultimately, the decision of how best to address our disputes with China (be it militarily, diplomatically, legally) rests on the political branches of government.

“While we are loath to give a ‘blank check’ especially where the risk of grave abuse of discretion may be high, we cannot have an ‘entrammeled executive’ who will be ill-equipped to face the ‘amorphous threat[s] and perpetrators whose malign intent may be impossible to know until they strike.

“The Constitution vests executive power, which includes the duty to execute the law, protect the Philippines, and conduct foreign affairs, in the President — not this Court.

“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 national security concerns that the subject entails,’ we cannot, in the words of Justice Scalia (US SC Justice Antonin Scalia), just simply ‘blunder in.’

“WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED. SO ORDERED.”