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Duterte’s way

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.



The recent Supreme Court (SC) denial of the mandamus petition on President Rodrigo Duterte regarding the West Philippine Sea policy of the government has a profound effect on governance and often criticized independent foreign policy.

The SC decision issued on 29 June 2021, but made public 22 November 2021 through the tribunal’s website, penned by Associate Justice Rodil Zalameda, upheld the primacy of the Executive in the crafting of foreign policy.

Zalameda said the petition of lawyer Romeo Esmero, which had the President as the sole respondent, should be dismissed outright.

The President is immune from suit, regardless of the nature, during his incumbency, Zalameda noted.

Yet, he gave space for the suit to enjoy the benefit of the doubt in examining it.

“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 ruling indicated.

Then the SC went through the process of reviewing Esmero’s arguments, thus, in effect shedding light on the extent of the powers of the Executive and the President as its head.

The SC in its resolution cited American jurisprudence and legal literature:

“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,” it continued.

Thus, the magistrates ruled that “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.”

It spelled out the authority of Mr. Duterte as head of state: “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.”

His critics has been pointing out the President has failed to defend the national territory, which includes WPS, against Chinese incursions resulting to the aggressive build-up of the Chinese and the intimidation of Philippine vessels, including those of Filipino fishermen in the disputed maritime area.

The President was also accused of failing to pursue the territorial claim of the Philippines based on the Permanent Court of Arbitration ruling that dismissed the nine-dash line claim of Beijing.

“For all his posturing, however, petitioner has failed to point to any law that specifically requires the President to go to the United Nations or the International Court of Justice 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,” the High Court stated.

“If President Duterte now sees fit to take a different approach with China despite said (PCA) 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 chief judiciary body indicated.

“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,” SC pointed out.

The late former President Noynoy Aquino chose the way of belligerence in his conduct of affairs with China that was within the bounds of his authority, but which resulted to a lot of uncertainties not only on the country’s security, but also in the economic sphere, since China is a key trade partner.

It was during Aquino’s time that China’s reclamation of land features to establish its claim happened.

Mr. Duterte chose a diverse path by engaging China to obtain economic concessions that helped the country maintain a solid growth path.

Mr. Duterte’s logic was that the ruling will always be there while the country must recognize the value of China being a neighbor and an emerging superpower in obtaining benefits for the nation.