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SC blocked plea to compel PDu30 to sue Ch over WPH Sea incursions

By J.Lo

Supreme Court Associate Justice Rodil Zalameda

"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 Supreme Court has junked  lawyer's plea to compel President Rodrigo Duterte to sue China over its incursions in West Philippine Sea.

In a unanimous ruling dated June 29 ,2021 but only uploaded on the SC website on Monday, the SC en banc dismissed for "utter lack of merit" 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.

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

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

Esmero claimed "it is the ministerial duty of the President to defend the national territory which includes 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 livelihood of all of our poor Filipino fishermen and their families who are living in the coastal areas facing West Philippine Sea'," he said in his petition.

But the high court, in 9-page ruling penned by Associate Justice Rodil Zalameda, said the President has discretion on  how to proceed as "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 UN or  ICJ, and neither has Esmero shown  "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  favorable ruling in 2016, invalidating Beijing's sweeping claims over almost entire South China Sea, within  West Philippine Sea.

"If President Duterte now sees fit to take  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 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 release of the ruling came as Philippines protested yet another incident of incursion and attack by Chinese authorities in West Philippine Sea.

Officials said that last Nov. 16,2021 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.

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