SC affirms Duterte discretion on WPS row


THE Supreme Court is keeping its hands off controversies involving the national territory, including the country’s dispute with China over the latter’s incursions in the West Philippine Sea (WPS), saying the matter should be left to the discretion of the President.

Reacting to the judgment, Malacañang welcomed the high court’s upholding of the President’s discretion, affirming his role as “chief architect” of the country’s foreign policy. Nonetheless, Palace officials said, Duterte remains committed to a peaceful and just resolution of the maritime disputes.

In a nine-page decision penned by Associate Justice Rodil Zalameda, the Court en banc dismissed the petition for mandamus filed by lawyer Romeo Esmero seeking to compel President Duterte to defend the country’s territory.

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 argued that it is the government’s prime duty to serve and protect the people and their rights, including those to the national territory; it is the ministerial duty of the President to defend the national territory which includes the WPS as established by the UN Arbitral Tribunal. The national territory (including the archipelagic principle) enshrined in the Constitution and the exclusive economic zone are fully recognized in the international law; and the petition is an exception to the general rule on presidential immunity from suit since it involves inaction or failure to perform Duterte’s presidential duties relative to the WPS, Esmero 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 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,” the petitioner said.

The petitioner  insisted 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 to ask the latter to send “UN Patrol Boats  to protect our fishermen.”

Esmero also argued that the Philippines should  sue China before  the International Court of Justice (ICJ) and demand damages for taking over the Kalayaan islands.

However, the Court said the petition should be dismissed outright as it named the President as the sole respondent in the case.

It stressed that the President is immune from suit during his term, regardless of the nature of the suit filed against him.

However, the Court said even if it would consider the  petition  based on merits, it would still rule against the petitioner.

“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,” the Court declared.

“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 added.

The SC also noted that the petitioner 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 in the country’s  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,” it added.

While his predecessor, the late President Benigno Aquino III, opted to file a case against China before the Arbitral Tribunal at the Permanent Court of Arbitration in The Hague under the United Nations Convention on the Law of the Sea (Unclos) to settle the dispute, the SC said Duterte is not obliged to take the same path.

On July 12, 2016, the arbitral tribunal issued an Award in favor of claims by the Philippines and settled 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,” the SC pointed out.

“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.

The SC stressed that  the decision of how best to resolve the ongoing territorial disputes with China — either militarily, diplomatically or legally – belongs to the jurisdiction of the political branches of the 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 High Tribunal declared.

“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,’” it added.

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