MANILA, Philippines – Newly-released dissenting opinions of two Supreme Court justices revealed how magistrates of the Supreme Court argued on behalf of President Rodrigo Duterte in order to shield him from the touchy issue of revealing to the public the true state of his health.

After 2 months, the Supreme Court released a copy of the 6-page notice resolution on the Court voting 13-2 to dismiss a petition for mandamus seeking to compel Duterte to release health records.

The majority dismissed the case outright, or without having to require Malacañang to answer the petition.

The petition was the first to test Section 12, Article VII of the Constitution which says that: “In case of serious illness of the President, the public shall be informed of the state of his health.”

The resolution cited deliberations of the constitutional commission to say that the President has the discretion to “choose the appropriate means of releasing information to the public.”

The resolution also said that Duterte’s own claims of health issues such as having rare diseases like myasthenia gravis and buerger’s disease are all hearsay because its sources are news items.

The Supreme Court said that Duterte’s televised speeches during the pandemic is proof that he is not suffering from a serious illness.

“The Court also deems it proper to emphasize that in the recent months, the President has been visibly holding regular cabinet meetings, belying petitioner’s insinuation that the President is suffering from serious illnesses,” the resolution said.

“Further, the President’s regular televised addresses to the nation as regards the government’s response to the Covid-19 pandemic show that the President has been actively performing his official duties,” it added.

How justices argued for Duterte

Associate Justices Marvic Leonen and Benjamin Caguioa dissented mainly because they believed the issue should have been fully litigated, and that it was the Court’s duty to interpret the provision once and for all.

That the Court did not even require comment, “undermines our independence and makes this Court vulnerable to a charge that we have ceased to be a sentinel of the fundamental rights of the sovereign people and enrobed ourselves with the garments of servility,” according to Leonen in his 30-page dissent.

Caguioa, meanwhile, revealed many details of the deliberations in his 31-page dissenting opinion.

It turned out that some justices wanted to invoke data privacy to protect Duterte; and that some of them believed the case was already moot because the president revealed details of his health to the public anyway. (PODCAST: Law of Duterte Land: Will petition to disclose Duterte health work?)

“For the Court to declare that the controversy has become moot solely because the President had already narrated to the public the ailments he suffers from does not only unwarrantedly preempt the full breadth and depth of the President’s duty to disclose a serious illness as may finally be defined by the Court in interpreting Section 12, Article VII, it also clearly signals an overly deferential attitude to a sitting President,” said Caguioa.

Caguioa also revealed that some of them thought Section 12, Article VII was not a self-executing provision. Self-executing provisions are those that do not need an enabling legislation to be implemented.

Leonen said that it was a case of the Court arguing for Duterte – “as if this Court itself supplied the arguments for the ease and convenience of the government.”

“In effect, we produced an argument that should have been raised by the respondents. Such a posture is procedurally unacceptable and may leave an impression that the Bench has lost its independence,” said Leonen.

Leonen added: “We must never take the position of an active combatant and must refrain from arguing for any party involved.”

Leonen revealed in his dissenting opinion that although they concurred in the decision, Senior Associate Justice Estela Perlas-Bernabe and Associate Justice Amy Lazaro-Javier “believed that a comment should have first been required since doctrine was introduced in resolving this novel issue.”

No legal right violated

The resolution said that the petitioner, lawyer Dino De Leon, failed to establish that there was a legal right violated. 

Leonen disagreed and said, “as a citizen, petitioner has the clear legal right to the relief he seeks since he is deemed part of the general public which possesses that right.”

Caguioa said a citizen’s right to be informed of the President’s state of health under Section 12, Article VII must be appreciated hand-in-hand with the people’s right to information under Section 17, Article III or the Bill of Rights.

Caguioa revealed that “there were observations during deliberations” that because the provision being tested was not found under the Bill of Rights meant it was “not a fundamental constitutional right but rather a sui generis (class of its own) responsibility falling within the sole discretion of the executive.”

“With utmost respect, I differ. Section 12, Article VIII in itself recognizes the right of the people to be informed of the state of the President’s health…that the former provision does not appear in the Bill of Rights is inconsequential,” said Caguioa.

De Leon had already filed a Freedom of Information (FOI) request before Malacañang but had been told the information he sought was not in their possession.

Leonen believed that the result of De Leon’s FOI request – the uncertainty – has left him with no choice but to go to the Court.

Leonen said that De Leon’s petition was exempted from the hierarchy of courts, and was of transcendental importance.

Leonen said there was a clear case for the Court to fully litigate, and Caguioa said it was the Court’s duty to interpret what “serious illness” means.

Caguioa said that for the majority to simply rely on deliberations of the constitutional commission to say that it is upon the President’s sole discretion “defeats the purpose of the provision and renders it wholly ineffective if not completely inutile.”

“This is a dangerous path which should not be taken,” said Caguioa.

READ THE NOTICE RESOLUTION AND THE DISSENTING OPINIONS HERE:

 – Rappler.com