SC on call for ‘proactive’ mass testing: It cannot tell how gov’t should do its job

MANILA, Philippines —The government cannot be compelled to conduct mass testing “no matter how dire the emergency” because there is no law requiring them to do so, the Supreme Court said as it dismissed the mandamus petition which sought to compel the government to intensify its fight against the coronavirus disease (COVID-19).

In a four-page ruling, the High Court dismissed the petition filed by the Citizens Urgent Response to End COVID-19 led by its spokesperson, former Social Welfare chief Judy Taguiwalo, Coalition for the People’s Right to Health Convenor Dr. Raymond Joshua L. San Pedro, and several others because they “utterly failed to show that they are entitled to the issuance of a writ of mandamus.”

A mandamus is a judicial remedy compelling any government office, subordinate court, corporation, or public authority to perform a ministerial act which it neglected to do so.

The petitioners cited their constitutional right to health in calling for a “proactive” mass testing, ramp up contact tracing and release accurate information on the country’s status in its fight against COVID-19.

“The omission of proactive and efficient mass testing amid the COVID-19 pandemic has shown that a systemic and normalized violation of the right to health engenders the impairment of other human rights and liberties, such as the rights to travel, livelihood or work, education, and access to justice,” said the petitioners in the 77-page petition.

But the Supreme Court said mandamus is applicable only if they need to order a certain government office or official to do its job specifically identified under the law but they cannot tell one how to do their job.

In protecting the public’s right to health, the High Court noted that even the petitioners acknowledged that the government has taken measures against COVID-19 such as expanded testing and implementation of community quarantine. However, they believe that such measures are not enough.

“The job of the Court is to say what the law is, not dictate how another branch of government should do its job,” the High Court said.

“Without demonstration that an official in the executive branch failed to perform a mandatory, nondiscretionary duty, courts have no authority to issue a writ of mandamus, no matter how dire the emergency,” the High Court added.

The ruling is the fourth time in recent months that the High Court junked a petition outright without asking the respondents to comment first.

It earlier dismissed the petition filed by lawyer Dino De Leon asking the Court to compel Malacanang to release the medical record of President Duterte and the plea of former Law Dean Jaime Ibanez questioning the constitutionality of Republic Act 11469 or the Bayanihan To Heal As One Act and other quarantine measures imposed by the government to prevent the spread of the coronavirus.

In the same ruling, the high court faulted the petitioners for failing to exhaust administrative remedies by going directly to them when they could have petitioned the DOH and other government agencies tasked to fight the coronavirus, all the way to the Office of the President.

“There is no showing in their petition that they have exhausted administrative remedies. Their claim that the questioned raised are purely legal is also not well-taken because the issue on whether the government’s alleged refusal to conduct mass testing, efficient treatment or isolation violates the Constitution and the laws necessarily involves a factual determination,” the high court said.

Further, the high court said as regards the right to information, petitioners should have availed of the plain and speedy remedy by requesting for particular information under the Executive Order No.2 series of 2016 which operationalizes the people’s right to information.

But Associate Justice Marvic Leonen, in his dissenting opinion, Associate Justice Marvic Leonen said the respondents should have been asked to comment first on the plea.

“A comment is required so that there may be a fuller exposition of the issues from the point of view of the respondents,” Leonen said, adding that the constitutional right to health and the State’s duty to provide to provide for the people’s health is self-executory.

Leonen also stressed that the information prayed for by the petitioners such as the data on testing “are matters of public concern or involve public interest.”

“Ultimately then, petitioners assert a valid right-their right to information- that they say is being breached by respondents. This assertion, as with that of their right to health, only serves to bolster the grounds of their petition. At the very least, it merits a comment from the respondents,” Leonen added.

Associate Justice Priscilla Baltazar Padilla was on leave when the petition was tackled and voted upon.

The National Union of People’s Lawyers which is serving as the counsel of the petitioners said the SC ruling is a regrettable one considering that it would have compelled the government to do its constitutional duty to protect the people’s health and its right to information.

“The Resolution dashes hope that our inept and negligent government will be compelled to do its constitutional duty to protect and respect the people’s right to health and information,” the NUPL said in a statement.

“The government is counting not on itself and what it can do to arrest the health crisis once and for all, but on coronavirus vaccines from other countries that have yet to come,” it added. [muf]