Pedrito M. Nepomuceno, Former Mayor – BOAC, Marinduque vs. President Rodrigo R. Duterte

UDK No. 16838. May 11, 2021


A petition for writ of mandamus is filed by Pedrito Nepomuceno (petitioner) against respondents President Rodrigo Duterte, Health Secretary Francisco Duque, and Gen. Carlito Galvez, Jr. (Ret.), as Chief Implementer of the National Task Force against COVID-19 (respondents), seeking to compel respondents to observe the Food and Drug Administration (FDA) rules on the acquisition, procurement and use of drugs, particularly on the issue of trials and procurement and use of COVID-19 vaccines, namely, the Sinovac vaccines and for them to properly observe the procurement law.

At the core of the petition is the concern raised by petitioner over the plan announced by the national government to procure vaccines produced by Sinovac (Sinovac vaccine) for distribution and administration to the Filipino people in order to contain the spread of infection brought about by the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), which causes the coronavirus disease of COVID-19. This is despite reports raising doubts on the efficacy of the Sinovac vaccine and the absence of a concrete study on how it really fares in addressing the COVID-19 disease.


(1) Whether President Duterte may be made as a party in the petition.

(2) Whether the petition for mandamus must be dismissed

(3) Whether the Supreme Court has jurisdiction over the petition for mandamus filed


(1) NO. President Rodrigo Duterte, as the incumbent President of the Republic of the Philippines, must be dropped as a respondent. Settled is the rule that the President of the Republic of the Philippines cannot be sued during his/her tenure. This immunity from suit applies to President Rodrigo Duterte (President Duterte) regardless of the nature of the suit filed against him for as long as he sits as the President of the Republic of the Philippines.

An incumbent President of the Republic of the Philippines cannot be sued in any proceeding. With executive power solely vested in the President of the Philippines, he should be freed from any distraction that would imperil the performance of his duties as mandated by the Constitution. Thus, presidential immunity from suit shields President Duterte from facing any complaint or petition during his tenure. While he remains accountable to the people, the only proceeding for which he may be involved in litigation during his term of office is an impeachment proceeding, which is clearly not the present case. Hence, he is not a proper party to be sued in the instant petition.

(2) YES.  Section 3, Rule 65 of the Revised Rules of Court is the governing provision that provides the requirements for a party to avail the relief of a writ of mandamus.  The writ may issue in either of two (2) situations: 

  1. when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station”; 
  2. when any tribunal, corporation, board, officer or person . . . unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled.

Petitioner must raise the specific provision of law that enjoins the respondents to perform a duty resulting from their office, but which they unlawfully neglected to perform. In addition, petitioner must show that the act sought to be compelled concerns the performance of a ministerial duty, not a discretionary one.

Petitioner failed to point out the existence of a ministerial duty, which the law compels the respondents to perform with regard to the conduct of trial and procurement of vaccines for COVID-19, as prayed for in the petition. It bears stressing that ample authority has been granted by the legislative department in favor of President Duterte to be able to speedily address the rising cases of COVID-19 in the Philippines. R.A. 11525 has to do away with the usual procedures adopted in terms of clinical trials and public bidding requirements in the procurement of vaccines because of the expediency required in addressing the pandemic. Extraordinary times that present an invisible threat to the health of individuals, unbeknown to humanity, require an immediate exceptional response from the government. This exceptional response must of course be in line with the guidelines and actions undertaken by an international central authority which, in this case, is the WHO and trusted international agencies. In all, petitioner failed to point out any provision of law that imposes a ministerial duty on the part of the respondents to perform an act in compliance with a specific mandate for conduct of clinical trial and procurement of COVID-19 vaccines, specifically that produced by Sinovac. The contrary even appears, respondents are given sufficient leeway to be exempted from the usual procedures in the conduct of clinical trials and usual procurement processes.

(3) NO. Petitioner’s direct resort before the Supreme Court is improper. A challenge to the efficacy of the Sinovac vaccine is a question of fact that is beyond the scope of this Court’s jurisdiction. To go into the details of a vaccine’s efficacy would require the presentation of its clinical trial results and a comparative analysis of the various results of the other vaccines in order to determine the acceptable standard of what an effective COVID-19 vaccine should be. However, it is a settled rule that the Supreme Court is not a trier of facts. Complementing this rule is the doctrine of hierarchy of courts, which requires a party to file the appropriate petition in the proper court, especially when the petition calls for an examination of the factual issues raised in the petition. In the case of a petition for mandamus, Section 21 of Batas Pambansa Bilang (B.P.) 129 grants the regional trial court original jurisdiction in resolving a petition for the issuance of a writ of mandamus. 

In People v. Cuaresma, Supreme Court’s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts and Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. The Doctrine of Hierarchy of Courts is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. This is an established policy. x x x

Failure to comply is sufficient cause for the dismissal of the petition. Strict observance of the doctrine of hierarchy of courts should not be a matter of mere policy. It is a constitutional imperative given (1) the structure of our judicial system and (2) the requirements of due process. The Supreme Court, as the final arbiter of laws, will lose significance if all petitions over which it has concurrent jurisdiction will be entertained. While there may be exceptions to this rule, petitioner failed to raise the applicability of any of the exceptions. These exceptions, which allow direct resort to this Court was enumerated in Gios-Samar as follows:

  1. when there are genuine issues of constitutionality that must be addressed at the most immediate time;
  2. when the issues involved are of transcendental importance;
  3. cases of first impression;
  4. the constitutional issues raised are better decided by the Court;
  5.  exigency in certain situations;
  6. the filed petition reviews the act of a constitutional organ;
  7. when petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents’ acts in violation of their right to freedom of expression; [and]
  8. the petition includes questions that are “dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy.”

Petitioner failed to point out any question of law worthy of consideration by this Court. He also failed to present any circumstance or nature of the question raised in the petition that would fall in any of the exceptions for which the legality of the actions taken by the respondents may be thoroughly examined.

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