G.R. No. 256288 , June 29, 2021
ATTY. ROMEO M. ESMERO, PETITIONER, VS. HIS EXCELLENCY, HONORABLE PRESIDENT, RODRIGO ROA DUTERTE, RESPONDENT.

FACTS

Petitioner Atty. Romeo M. Esmero filed a Petition for Mandamus to compel President Rodrigo Roa Duterte to defend the West Philippine Sea, which he asserts is part of Philippine territory under the Constitution and as confirmed by a final United Nations Arbitral Tribunal ruling. The petition was preceded by a public dispute involving former Supreme Court Senior Associate Justice Antonio T. Carpio and former Foreign Affairs Secretary Albert F. Del Rosario regarding the presence of Chinese maritime vessels in the area. Petitioner alleges the President’s inaction constitutes an unlawful neglect of his ministerial duty to defend the national territory. He argues the President should pursue peaceful remedies, such as bringing the matter before the United Nations Security Council, invoking the Uniting for Peace Resolution of 1950 to bypass a potential Chinese veto, and subsequently seeking action from the UN General Assembly, including the deployment of UN patrol boats. Petitioner also suggests suing China before the International Court of Justice for damages related to the Kalayaan Islands. The ponencia (Decision by Justice Zalameda) held the petition should be dismissed outright because the President is immune from suit during incumbency. It further held that even if considered against the President’s representative, mandamus would not lie as the petitioner failed to show a clear legal right to the performance of a ministerial duty, as the President’s actions in foreign affairs are discretionary.

ISSUE

Whether the President can be the subject of a suit, specifically a petition for mandamus, to compel the performance of a duty to defend the West Philippine Sea.

RULING

Justice Leonen, in a Separate Concurring Opinion, agreed with the ponencia’s result to dismiss the petition but took exception to the broad statement that a sitting President cannot be the subject of any type of suit. He concurred that matters within the President’s discretion cannot be compelled by mandamus. He agreed that the President enjoys immunity from suit during incumbency, whether administrative, civil, or criminal. However, he clarified that presidential immunity is not absolute. He cited jurisprudence (Soliven v. Makasiar, David v. Macapagal-Arroyo) indicating the President may be sued in certain circumstances, such as when they are compelled to act by law in a non-discretionary manner, or in an impeachment complaint. He also noted that the privilege of immunity is personal to the President and can be waived. Ultimately, he voted to dismiss the petition because the direction of the country’s foreign policy is a political question subject to the discretion of the political branches, and absent grave abuse of discretion, the Court should not interfere. The act of defending territory and determining how to engage with international bodies like the UN is discretionary, not ministerial, and thus not compellable by mandamus.