Supreme Court junks plea for free mass testing

Mike Navallo, ABS-CBN News

Posted at Sep 16 2020 11:33 AM | Updated as of Sep 16 2020 11:57 AM

Health workers collect nasal and throat swabs as part of the coronavirus testing in Barangay San Isidro, Parañaque on August 20, 2020. Jonathan Cellona, ABS-CBN News

MANILA (UPDATE) – In yet another outright dismissal, the Supreme Court has rejected the plea of a group of health advocates urging the Philippine government to conduct free mass testing for the coronavirus.
 
In a resolution dated September 1 but received by petitioners only on Tuesday, the SC en banc denied the petition for mandamus filed by the Citizens Urgent Response to End COVID-19 (CURE COVID-19) led by its spokesperson, former Social Welfare Secretary Judy Taguiwalo “for failure of petitioners to show that they are entitled to the issuance of a writ of mandamus.”
 
A petition for mandamus seeks to order a tribunal, corporation, board, officer or person to perform an unlawfully neglected duty.
 
According to the court, this will only be the appropriate remedy where “the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.
 
“The job of the Court is to say what the law is, not dictate how another branch of government should do its job,” the SC said in its resolution.
 
“Without a demonstration that an official in the executive branch failed to perform a mandatory, nondiscretionary duty, courts have no authority to issue a writ of mandamus, no matter how dire the emergency,” it added.
 
SC also said the petitioners failed to exhaust other remedies as they could have gone to other government agencies such the Health, Interior and other departments, even the Office of the President. 

The magistrates voted 13-1-1, with Associate Justice Marvic Leonen dissenting and Associate Justice Priscilla Baltazar-Padilla on leave.

WHAT PETITIONERS WANTED

Petitioners had anchored their petition on section 15 of Article II of the Constitution which requires the State to protect and promote the right to health of its people and section 11 of Article XII on the State’s duty to provide for people’s health.

In their petition filed on July 3, petitioners claimed the delayed and insufficient government response to the coronavirus pandemic has violated their right to health. 
 
They questioned the Health department’s implementation of an “expanded targeted testing” that is supposed to cover suspect cases, individuals with relevant history of travel and exposure to COVID-19 cases and health care workers with possible exposure. 
 
But the DOH’s “multi-level prioritization,” they said, left many suspect and probable cases, whether patient or healthcare workers, untested and untreated.
 
They also claimed contact tracing is delayed and insufficient and accused the government of providing “delayed, incomplete, and worse, dowright misleading” data.
 
LEONEN DISSENTS
 
SC Associate Justice Marvic Leonen dissented, saying the constitutional provisions relied on by petitioners have been declared self-executory by the Supreme Court in a 2014 ruling.
 
In declaring certain provisions of the Reproductive Health Law unconstitutional, the Supreme Court in Imbong vs. Ochoa said that provisions on right to health are self-executing, which means, they do not require a law before they can be implemented.
 
Leonen pointed out the Health department’s mandate as well as obligations under Republic Act 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern Health Act and the Philippine government’s treaty obligations to follow World Health Organization protocols.
 
“The Department of Health’s obligations set by the law and the International Health Regulations are the same ones that petitioners raise in this case. Without the effective response system that complies with the World Health Organization’s recommendations, petitioners allege that respondents deny them their right to health,” he said.
 
He added that petitioners’s plea for “accurate and timely” information on the COVID-19 situation involves matters of public concern or public interest.
 
At the very least, Leonen said, the respondents should have been asked to comment on the petition, following their own internal rules that the SC should adjudicate cases through a decision if the ruling will have “significant doctrinal values; resolve novel issues; or impact on the social, political, and economic life of the nation.”
 
“A ruling on these issues will have a significant impact on the social, political and economic life of the nation. That alone should have prompted this Court to at least require respondents to file a comment without necessarily giving due course to the Petition. A comment would have given a fuller exposition of the constitutional issues raised, this time from respondents’ view,” he said.
 
Named as respondents to the petition were Health Secretary Francisco Duque III, Defense Secretary Delfin Lorenzana as head of the National Task Force on COVID-19, Sec. Carlito Galvez as chief implementer of the National Action Plan against COVID-19, Interior Secretary Eduardo Año as Inter-Agency Task Force (IATF) vice chairperson and IATF members Sec. Arthur Tugade, Wendel Avisado, Cabinet Secretary Karlo Nograles and Labor Secretary Silvestre Bello III.
 
This is the 5th time in recent months that the SC has dismissed outright a petition filed before it, without requiring respondents to comment. 
 
It previously junked pleas seeking to compel the Office of the President to disclose President Duterte’s health records as well as challenging the Bayanihan to Heal As One Act and quarantine measures the government put in place.

It also junked 2 petitions filed by lawyer Lorenzo Gadon – the first one seeking to stop the National Telecommunications Commission from issuing a provisional authority to ABS-CBN and his latest bid to question the naming of the Ninoy Aquino International Airport after Ninoy Aquino, 33 years after the law was enacted.


NUPL REACTS

Reacting to the ruling, the National Union of Peoples’ Lawyers-NCR said: "The Resolution dashes hopes that our inept and negligent government will be compelled to do its constitutional duty to protect and respect the people’s rights to health and information. For the half year that we have been placed under quarantine, we have not seen significant improvements in mass testing, contract tracing and isolation.”
 
“Confirmed cases of COVID-19 are spiking once again while our medical frontliners and resources continue to be exhausted. The government is counting not on itself and what it can do to arrest the health crisis once and for all, but on coronavirus vaccines from other countries that have yet to come,” it added.
 
The Palace had earlier downplayed the petition saying there is a COVID-19 testing program in place.

The Philippines as of Tuesday reported 269,407 cases of COVID-19, with 207,352 recoveries and 4,663 deaths.