Supreme Court of the Philippines

Supreme Court: Duterte has discretion on defense of West PH Sea

Lian Buan
Supreme Court: Duterte has discretion on defense of West PH Sea

PROTECT WEST PHILIPPINE SEA. fisherfolks group Pamalakaya troops to the Chinese Consulate in Makati City on November 24, 2021, to protest the latest water cannon incident in the West Philippine Sea.


(1st UPDATE) The Court says that as the head of state, 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'

The power of presidential discretion won again as the Supreme Court junked the latest petition for mandamus against the government that had asked the Court to compel President Rodrigo Duterte to execute laws to protect the West Philippine Sea from Chinese incursions.

Voting unanimously, 14-0, the Supreme Court en banc said “the decision of how best to address our disputes with China (be it militarily, diplomatically, legally) rests on the political branches of govemment.”

“Being the Head of State, [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,” said the decision written by Associate Justice Rodil Zalameda, with concurrence of the full Court.

The decision was promulgated on June 29 but released only on November 22.

The petition was filed by lawyer Romeo Esmero who resorted to filing a mandamus, a judicial remedy that seeks to compel an official or a government body to perform a duty. In a landmark case on granting mandamus, the Supreme Court compelled the government – continously, transferrable to administrations – to protect Manila Bay.

But the Supreme Court said that for a mandamus to be granted, the duty must be ministerial and not discretionary. The Supreme Court defines a ministerial duty as a duty specifically provided by law.

The duty to create a foreign policy, the Supreme Court said, is discretionary, and not ministerial.

The Philippine government had been filing a barrage of diplomatic protests against China for the presence of their vessels in the West Philippine Sea, but such actions have not deterred Chinese ships from entering the area. The petitioner said diplomatic protests were not sufficient to enforce the duty to protect Philippine territory.

“For all his posturing, however, petitioner has faled 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),” said the Court.

“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 Court added.

On November 16, Chinese coast guard ships blocked and fired water cannons at Philippine vessels which were on their way to resupply military personnel stationed in Ayungin Shoal (Second Thomas Shoal).

Political issue

Recent cases where the Supreme Court upheld presidential discretion in the context of the Duterte government is martial law in Mindanao, when to disclose the President’s state of health to the public, on the issue of whether the government should have done mass testing amid the pandemic, and ironically, the dolomite issue in Manila Bay.

It touches upon one of the biggest debates in the Philippine legal scene – when does the Court say an issue is a political one best left to political branches, and when should it step in? On the latest issue, the Court said it shouldn’t.

“Barring violations of the limits provided by law and the Constitution, we should take care not to substitute our exercise of discretion for [the President’s.]. As ‘the branch that knows least about the national security concerns that the subject entails,’ we cannot, in the words of Justice Scalia, just simply ‘blunder in,'” said the Court.

Malacañang welcomed the decision.

“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,” Presidential Spokesperson Karlo Nograles said in a statement.

“President Duterte is the chief architect of foreign policy and this is affirmed by the latest decision of the High Court. Having said this, the President has firmly kept his position to continue the peaceful resolution of disputes,” he added.

There was an earlier similar mandamus petition, filed by the Integrated Bar of the Philippines (IBP) on behalf of fishermen in Zambales and Palawan, which invoked the Fisheries Code and several environmental issuances as the law-mandated duties that need to be performed.

But Solicitor General Jose Calida got the fishermen to withdraw their affidavits, which then prompted the IBP to withdraw the

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.