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SC: WPS defense up to Duterte

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



The Supreme Court (SC) has junked a petition that sought to compel President Rodrigo Duterte to sue China for its incursions in the West Philippine Sea (WPS).

Voting unanimously, 14-0, the SC en banc denied the petition for mandamus filed by lawyer Romeo Esmero for “utter lack of merit,” as it acknowledged that “the decision of how best to address our disputes with China (be it militarily, diplomatically, legally) rests on the political branches of government.”

“Being the Head of State, he (Duterte) is free to use his own discretion on this matter, accountable only to his country in his political character and to his own conscience,” the Court said in its ruling dated 29 June but was only uploaded on the SC website on Monday.

The SC, citing its previous ruling, also said that the plea should be dismissed outright since the petitioner only had Duterte as a sole respondent.

The President is immune from suit during his incumbency regardless of a charge filed against him, the High Court affirmed.

In his petition, Esmero alleged that there was “unlawful neglect or inaction” on the part of Duterte to protect Philippine territory, claiming that that the matter led to “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.”

The petitioner added that the Philippines should sue China with the International Court of Justice (ICJ) and seek payment of damages for the taking of Kalayaan Islands.

“The President is not prohibited from engaging in a defensive war and, in so doing, call upon the people to defend the State against China’s aggression,” Esmero said.

But the SC said: “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).”

The Court added that the petitioner did not show 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.”

Malacañang welcomed the SC decision, reiterating its stance that the sitting Philippine president is the chief architect of foreign policy.

“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,” said Cabinet Secretary Karlo Nograles, who is also acting presidential spokesperson.

“Having said this, the President has firmly kept his position to continue seeking the peaceful resolution of disputes,” he added.

Associate Justice Rodil Zalameda penned the SC’s nine-page decision, with the concurrence of the full Court.

Meanwhile, 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 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 vs 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 said.

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.

Duterte and the Department of Foreign Affairs have since denounced the incident, with the Philippine leader raising it during his recent meeting with Chinese President Xi Jinping and other Southeast Asian leaders.

WPS a priority
Defense Secretary Delfin Lorenzana on Wednesday expressed confidence that candidates for next year’s elections would prioritize the WPS in their agenda, at least during the campaign period, following China’s recent harassment incident.

“I am sure they are now studying these subject matters intensely so they will be prepared during the campaign period, especially the presidential debates. In fact, some have already made statements,” Lorenzana told reporters.

The Philippine Coast Guard (PCG), meanwhile, vowed that it would continue its mandate to protect the country’s waters from any intruders.

PCG commandant Admiral Leopoldo Laroya assured the public that the group would utilize its assets to protect Filipino fishermen and their livelihoods.