Dismissed without comment: How SC justified junking plea to disclose Duterte's health records

Mike Navallo, ABS-CBN News

Posted at Jul 09 2020 10:32 PM

MANILA -- Two months after dismissing the plea of a lawyer to compel President Rodrigo Duterte to disclose his health records, the Supreme Court on Wednesday released a copy of the ruling.

In a 5-page resolution, the SC en banc said petitioner Dino de Leon "failed to establish the existence of a clear legal right that was violated, or that he is entitled to the writ of mandamus prayed for."

De Leon, who had to file a motion asking for a copy of the ruling last Friday, anchored his petition on section 12, Art. VII of the 1987 Constitution requiring the President to inform the public of the state of his health in case of serious illness and on the people's right to be informed of matters that affect them under section 7 of Article III.

In his petition filed in April, he quoted news reports where the President admitted to having Myasthenia Gravis, Buerger's Disease, GERD, Barrett's Esophagus aside from "spinal issues" and "daily migraines" as well as reports on alleged psychological issues of the President based on court records to support his contention that his illnesses are "serious" enough to compel Malacañang to disclose his health records.

WHY SC JUNKED THE PETITION

But the Supreme Court, voting 13-2, did not think so. It voted to junk the plea outright, without even requiring respondents to comment.

"After a punctilious evaluation of the petition, the Court finds that the averments and arguments in the petition failed to establish a prima facie case for mandamus, i.e., that the reliefs sought constitute ministerial duties on the part of respondents, and that there is a clear legal right on petitioner's part to demand the performance of these ministerial duties," the Court said.

A writ of mandamus compels a tribunal, corporation, board, officer or person to perform a ministerial duty which was unlawfully neglected.

According to the Court, the deliberations of the Constitutional Commission on the constitutional provision requiring the President to disclose health records show that the intention was to be "more trusting with respect to the Office of the President" and leave the burden to his office "to choose the appropriate means of releasing information to the public."

In short, the President has the discretion how to disclose the information on his health records, which is not a ministerial duty subject to mandamus.

The Court also dismissed as hearsay news reports cited by De Leon and took judicial notice of the President's recent activities, including his cabinet meetings and televised addresses to the nation.

"Apparently, petitioner's allegation that the President is seriously ill is unsubstantiated and is based merely on petitioner's surmises and conjectures regarding his perception of the declining health of the President," it said.

TWO MAGISTRATES DISSENT

Two magistrates -- Associate Justices Marvic Leonen and Alfredo Benjamin Caguioa strongly objected to the swift dismissal.

Caguioa asked why the Supreme Court had to act "with undue haste" in dismissing a complex petition that requires a more in-depth study. The petition was filed in April and was dismissed less than a month later.

"As Filipinos are literally facing death in the face, they deserve more from the Court than this almost cursory manner of disposition of a crucial issue," he said in his dissenting opinion.

"To require a Comment from the respondents is neither a needless and an embarrassing and humiliating exercise nor a course of action that may be contrary to what our tripartite system of government enjoys, as suggested during deliberations. To hold otherwise would be a gross misappreciation not only of the court processes provided under these rules, but more importantly, of the role that the Court fulfills in the Constitutional order," he added.

Caguioa said dismissing the petition outright was "truly perplexing" while Leonen voiced his "discomfort" at the decision of the majority.

Leonen revealed Senior Associate Justice Estela Perlas-Bernabe and Associate Justice Amy Lazaro-Javier were initially in favor of requiring respondents to comment. The two eventually sided with the majority.

He warned that deciding an unprecedented petition that could lay down foundational doctrines without any comment from the respondents could set an "atrocious precedent."

In immediately concluding that this provision does not create a ministerial duty, the Supreme Court, he said, in effect supplied the argument that should have been raised by respondents -- a "procedurally unacceptable" posture and "highly irregular move" that might leave a negative impression on the Court.

"It 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," he said.

Both Caguioa and Leonen agreed that requiring respondents to comment would allow for a "fuller exposition of the issues," especially since the Court is being asked to interpret section 12, Article VII of the Constitution for the first time.

Leonen recognized that De Leon's petition is a test case on the people's right to know about the President's health.

Both believed the Supreme Court should define what "serious illness" means.

Caguioa said the President has a positive duty to disclose his medical condition and that no law is needed in order to implement the constitutional provision as it is self-executing.

The two dissenting magistrates noted that the President has a limited reasonable expectation of privacy, with Caguioa adding that the right to informational privacy guaranteed under the Data Privacy Act of 2012 and raised during the magistrates' deliberations "cannot supersede the Constitutional right afforded to the public" and the constitutional duty to disclose the state of the President's health.

Leonen said the President cannot hide behind executive privilege to prevent disclosure of his health records.

He disagreed with the Court's assessment dismissing as hearsay the newspaper reports cited by De Leon, saying that the petition has enough allegations to raise a "reasonable concern about the President's true state of health."

Caguioa said that requiring the petitioner to provide adequate evidence outside of news articles on the President's illnesses makes it "virtually impossible" for this right to be invoked.

Leonen warned against relying on Constitutional Commission deliberations to interpret provisions of the Constitution as "...these exchanges are only between the people then present and do not necessarily reflect the insights of all framers or people that ratified the basic law."

Instead, he said the plain meaning of the language of the law should be considered, which does not impliedly or explicitly state whether the President is given the discretion on when and how to inform the public of his health.

Caguioa clarified that the framers of the Constitution only delegated to the President the discretion to choose the appropriate means of releasing the information but not the substance of the disclosure.

"To interpret the deliberations of the 1986 Constitutional Commission as a grant to the President of the absolute choice between divulging and concealing a serious illness and, by extension, the state of the President's well-being, 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," he said.

HOW SC ACTED ON OTHER PETITIONS

The Supreme Court, on June 30, also junked the first petition questioning the Bayanihan to Heal As One Act and other quarantine measures introduced by the government to combat the coronavirus, also without requiring respondents to comment.

The ground cited: failure to show grave abuse of discretion committed by the respondents.

That petition was filed only on June 2.

In contrast, the high court has yet to act on petitions filed by the families and relatives of political prisoners calling for the release of the sick and elderly detainees who are vulnerable to catching the coronavirus which was filed on April 8 and ABS-CBN'S plea for a temporary restraining order to resume its broadcast operations filed on May 7.

SC magistrates are expected to tackle the ABS-CBN petition on Monday, July 13.