Esmero v. Duterte, G.R. No. 256288, June 29, 2021

[ G.R. No.
256288, June 29, 2021 ]
ATTY. ROMEO M. ESMERO, PETITIONER, VS. HIS EXCELLENCY, HONORABLE PRESIDENT,

RODRIGO ROA DUTERTE, RESPONDENT.
RESOLUTION
ZALAMEDA, J.:
By this Petition for Mandamus,1 petitioner Atty. Romeo M. Esmero (petitioner) seeks the issuance of
a writ to compel respondent President Rodrigo R. Duterte (President Duterte) to comply with his
constitutional duty to defend the national territory, which includes the West Philippine Sea, against
Chinese
RULING
The petition is DISMISSED for utter lack of merit.
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. ℒαwρhi ৷
Even if, for the sake of argument, the Court was inclined to overlook this fatal flaw and consider the
case filed against the Executive Secretary, as the representative of the President, a writ
of mandamus would still not lie in petitioner's favor.
Mandamus is used merely to compel action and to coerce the performance of a pre-existing duty; it
does not lie to control discretion.16 For a petition for mandamus to prosper, it must be shown that
the subject of the petition is a ministerial act or duty on the part of the board, officer or person, and
that the petitioner has a well-defined, clear and certain right to warrant the grant thereof.17 It falls on
the petitioner to show that his clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act.18
This Court, in De Castro v. Judicial and Bar Council,19 distinguished a ministerial act from one that
is discretionary: "A purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the act done.20
As the sole organ of our foreign relations and the constitutionally assigned chief architect of our
foreign policy, the President is vested with the exclusive power to conduct and manage the country's
interface with other states and governments.
Petitioner submits 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 (UN) to ask the latter to send "UN Patrol Boats x x x to protect our fishermen."
For all his posturing, however, petitioner has 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 into our 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.31
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.34
Ultimately, the decision of how best to address our disputes with China (be it militarily, diplomatically,
legally) rests on the political branches of government.
36 The Constitution vests executive power, which includes to duty to execute the law, protect the
Philippines, and conduct foreign affairs, in the President- not this Court. 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, just simply "blunder in."37
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED.
SO ORDERED.
This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this
power must still be exercised within the context and the parameters set by the Constitution, as well
as by existing domestic and international laws.24 [Emphasis supplied.]
The Court thereafter proceeded to list the following constitutional restrictions to the President's
foreign affairs powers:
a. The policy of freedom from nuclear weapons within Philippine territory;
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to the authority granted by Congress;
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress;
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board;
e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate; and
f. For agreements that do not tall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty.25
In addition to treaty-making, the President also has the power to appoint ambassadors, other public
ministers, and consuls;26 receive ambassadors and other public ministers duly accredited to the
Philippines;27 and deport aliens.28

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[ G.R. No.

256288, June 29, 2021 ]

ATTY. ROMEO M. ESMERO, PETITIONER, VS. HIS EXCELLENCY, HONORABLE PRESIDENT,

The petition is DISMISSED for utter lack of merit.

WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED.

a. The policy of freedom from nuclear weapons within Philippine territory;

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