SC junks lawyer’s plea to compel Duterte to sue China over West PH Sea incursions

Mike Navallo, ABS-CBN News

Posted at Nov 24 2021 01:00 PM | Updated as of Nov 24 2021 05:00 PM

President Rodrigo Duterte talks to the people after holding a meeting with the Inter-Agency Task Force on the Emerging Infectious Diseases (IATF-EID) core members at the Malacañang Palace on Nov. 23, 2021. Robinson Niñal, Presidential Photo
President Rodrigo Duterte talks to the people after holding a meeting with the Inter-Agency Task Force on the Emerging Infectious Diseases (IATF-EID) core members at the Malacañang Palace on Nov. 23, 2021. Robinson Niñal, Presidential Photo

MANILA (UPDATED) —The Supreme Court has junked a lawyer’s plea to compel President Rodrigo Duterte to sue China over its incursions in the West Philippine Sea.

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

Esmero impleaded the President as the sole respondent, but the high court said he is immune from suit.

“Our ruling in De Lima v. Duterte is clear: the President is immune 
from suit during his incumbency, regardless of the nature of the suit filed against him. Petitioner named President Duterte as the sole respondent in this case. For this reason, this suit should be dismissed outright,” the SC said.

It also noted that a petition for the issuance of a writ of mandamus is the wrong remedy.

A mandamus plea seeks to compel performance of a pre-existing duty, a ministerial function on the part of a board, officer or person, provided that the petitioner has a well-defined and clear right.

Esmero claimed “it is the ministerial duty of the President to defend the national territory which includes the West Philippine Sea as established by the UN Arbitral Tribunal,” even suggesting suing China before the International Court of Justice (ICJ) or bringing the matter before the United Nations (UN). 

“There is unlawful neglect or inaction by the President in the performance of his constitutional duty resulting to the detriment of ‘paramount public interest involve (sic) 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 said in his petition.

But the high court, in the 9-page ruling penned by Associate Justice Rodil Zalameda, said the President has the discretion how to proceed as the “sole organ and authority in the external affairs of the country.”

The SC pointed out there is no law requiring the President to go to the UN or the ICJ, and neither has Esmero shown a “clear and unmistakable 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 through the UN Convention on the Law of the Sea (UNCLOS) in 2013 which led to a favorable ruling in 2016, invalidating Beijing's sweeping claims over almost the entire South China Sea, within which is the West Philippine Sea.

“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,” the court said.

“Being the Head of State, he is free to use his own discretion in this matter, accountable only to his country in his political character and to his own conscience,” it added.

All 13 other justices concurred with Zalameda.

The decision affirms that Duterte "is the chief architect of foreign policy," said his acting spokesman Cabinet Secretary Karlo Nograles.

"Executive power, indeed, rests on the President, including the peaceful and stable conduct of foreign affairs. Matters within the President's discretion cannot be compelled by mandamus," he said in a statement. 

The President "has firmly kept his position to continue the peaceful resolution of disputes," Nograles said. 

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

Officials said that last Nov. 16, the Chinese Coast Guard blocked and used water cannon on Filipino supply boats at the Ayungin Shoal (Second Thomas Shoal), one of the nine features in the Kalayaan Island Group occupied by the Philippines.

The Philippines' position that Ayungin Shoal is within its exclusive economic zone and continental shelf has been affirmed by the 2016 arbitral ruling, according to a maritime law expert.

The US and other foreign governments expressed concern over the incident which they say threatens peace and stability in the international waterway. They also asked relevant parties to adhere to the 1982 UNCLOS and the 2016 arbitration ruling.

China, a signatory to UNCLOS, disregards the arbitration ruling.

Duterte set aside the arbitral award in the early years of his administration as he forged friendlier relations with China to get economic aid and investment. In May this year, he called it a mere piece of paper that he will throw in the waste basket.


Although, in a separate concurring opinion, Associate Justice Marvic Leonen disagreed that the President is immune from any type of suit.

While agreeing that the President’s discretion cannot be the subject of a mandamus suit, Leonen said the President should not be immune from suits demanding accountability.

“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,” he said.

The purpose, according to Leonen, is to guarantee that the performance of the President’s functions is free from any interruptions, not to shield him from any wrongdoing.

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

Leonen previously dissented to the SC ruling junking detained Sen. Leila de Lima's writ of habeas data plea against Duterte's tirades. 

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

However, since the plea of Esmero in the current case involved mandamus, Leonen voted with the majority to dismiss the petition.

No petitions before the SC directly challenging the President and his policies have so far succeeded.

Previous petitions to compel him to release his health records or questioning his decision to withdraw from the International Criminal Court without Senate concurrence were dismissed.

So were the petitions challenging Bayanihan laws and the government’s pandemic response, and compelling the government to conduct mass testing.


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