THE Office of the Solicitor General (OSG) has tagged as ‘fishing expedition’ the petition filed by former House Speaker Pantaleon Alvarez seeking to compel President Marcos Jr. to submit himself to physical and mental examination, including a hair follicle drug test.
Thus, in its 23-page comment on the petition submitted before the Court, Solicitor General Darlene Berberabe also cited the President’s immunity from suit and right to privacy in seeking the dismissal of the said petition.
‘It is a settled doctrine that an incumbent President is immune from suit during his tenure. The privilege pertains to the President by virtue of the office and assures the unhindered performance of its duties,’ Berberabe said.
The OSG also maintained that compelling the President to undergo physical and mental examination and to publish its results has no basis under the Constitution.
‘The President has no constitutional duty to undergo any physical and mental examination, let alone a hair follicle drug test, and disclose the report, to demonstrate his fitness to discharge the powers and duties as Chief Executive,’ Berberabe said.
In their petition, Alvarez et al cited the fundamental principles of ‘public accountability, the people’s right to information, and the requirement that the President must at all times be capable of performing the functions of his office,’ under Article VII, Section 12 and Article II, Section 7 of the Constitution.
Article VII, Section 12 mandates that the public be informed of the state of the President’s health in case of serious illness while Article III, Section 7 upholds the people’s right to be informed of matter of public concern. The OSG explained that under Section 12 disclosure of the state of the President’s health to the public is necessary only ‘when his serious illness already exists as a fact.’
‘It cannot be based on unfounded allegations, bare assertions, or, worse, on mere speculation, as in this case,’ Berberabe said.
Furthermore, the OSG stressed that Section 12 does not sanction a fact-finding process to determine the President’s health. ‘Petitioners cannot baselessly claim that the President is seriously ill then compel him to undergo medical examination to prove that very same claim,’ the OSG pointed out.
‘Here, the President has repeatedly informed the public that he is healthy and well, and that he continues to discharge the functions of his office. There is thus no factual basis to justify the extraordinary remedy of mandamus as herein prayed,’ it added.
The OSG said the petitioners also cannot invoke Article II, Section 7 of the Constitution in compelling the President to undergo medical examinations and publish the results. The said provisions states: ‘The right of the people to information on matters of public concern shall be recognized…’Berberabe said the said provision allows access to existing official records, and to documents but does not authorize court to create new official records by compelling the President to undergo a hair follicle drug test or any other medical procedure.
The chief government counsel noted that under Republic Act (R.A.) No. 10173, or the Data Privacy Act of 2012, information relating to an individual’s health is characterized as ‘sensitive personal information.’
Under Section 13 of the said law, according to Berberabe, the processing of sensitive personal information and privileged information is prohibited except if the data subject has given his or her consent. ‘The President has not consented; no statute or regulation compels his medical examination on demand of private citizens; no incapacity is alleged that prevents him from consenting; no medical treatment is in issue; and the present Petition is not the kind of legal proceeding contemplated by the statute,’ Berberabe explained.
She added that the term ‘serious illness’ should not cover just any physical or mental ailment.
It stressed that ‘health conditions are sensitive personal information and need not be publicly announced, particularly when the condition is not serious.’
‘Public officials are also entitled to the right of privacy and to measures that protect human dignity. Certainly, the public need not be privy to every minor ailment or trivial infirmity. The constitutional duty cannot be reduced to an instrument for unwarranted interference but must be understood as a safeguard for transparency in cases of genuine incapacity,’ the OSG said.
Berberabe said Alvarez et al’s petition is solely based on ‘general references and personal impressions,’ thus, should also be dismissed.
The OSG further stressed that petitioner’s allegations can be easily disproved by the President’s continuous active public appearances, attendance in meetings, and reports to the public.
Berberabe also questioned the legal standing of Alvarez and his three co-petitioners who invoked their status as concerned citizens, registered voters and taxpayers in filing the petition.
She said petitioners cannot file the petition as registered voters since they are not questioning the validity of an election law.
A taxpayer’s suit, on the other hand, may be filed only where public funds are illegally disbursed or tax measures are unconstitutional.
‘In conclusion, respondents strongly maintain that the Petition should be dismissed outright not only because petitioners have no legal standing to file it but, more importantly, it violates the President’s absolute immunity from suit,’ the OSG said.
‘The Petition has similarly not shown any legal or constitutional basis to compel the President to submit to any medical examination and publish its results, nor demonstrated any factual basis to assert any serious illness on the part of the President. Stripped clean of bombast and rhetoric, this Petition is nothing more than a fishing expedition. It must be resolutely denied,’ it added.