The year 2020 has brought to us a forced awareness of health matters, both on a public and private plane. Indeed, we have not seen in modern history such a paralysis brought about by an ancient enemy, which has pretty much held the whole world hostage. But world affairs must move on and the emphasis on strong leadership — both figuratively and literally — now has even more importance.

In fact, just recently, in Japan, the longest serving Prime Minister Shinzō Abe resigned to tend to a lingering abdominal issue, explaining to the people that he may no longer have the vigor to attend to the demanding work of a head of state and government. Across the Pacific, in the United States of America, it is the first time in its history that the candidates vying for the highest position in the government are both septuagenarians. Naturally, there is a concern on whether the candidates are physically and mentally able to lead a country, and in this respect both President Donald Trump and Democratic Party challenger Joe Biden shared their respective medical test results and bulletins — both showing they are able to withstand the demands of the job.

Biden, if elected, will be the oldest person to sit as President of the United States of America, as he would be 78 by Inauguration Day. In fact, Biden will be older than president Ronald Reagan was when the latter ended his two terms in 1989. Remarkably, Biden’s medical bulletin shows that he is of average weight for his age and has no serious ailments despite two brain surgeries in 1988 and the removal of his gall bladder in 2003.

Trump, on the other hand, at the age of 74, is also considered to be in good health despite being technically obese. He has no serious ailments but takes medications to manage his high cholesterol and to reduce the risk of heart attacks, among others. Trump also proudly announced in various media interviews that he aced a cognitive test and challenged Biden to take the same. He also informed the media of his famous memory test where he repeated the words “person, woman, man, camera, TV.” All these acknowledge the importance of health as a campaign issue.

We also face some curiosities regarding the health of our own President. Recently, there was speculation that President Rodrigo Duterte traveled to Singapore to undergo an “emergency treatment” for an undisclosed ailment. To refute this, Senator Bong Go posted a photo of President Duterte in his family home in Davao City while displaying the newspaper of the day — a photo which seemed to impress as a proof of life.

President Duterte also recently announced that his Barrett’s esophagus is worsening and that his doctors advised that his condition might develop to first stage cancer. This is not the first time the 75-year-old President publicized the ailments he is afflicted with. He previously made statements that he is suffering from Buerger’s disease, gastroesophageal reflux disease, spinal issues, and myasthenia gravis, in addition to Barrett’s esophagus.

This now raises the question: why is there a fascination over the health of other people? Is it out of morbid curiosity or is there an underlying rationality behind the movement to make the health of others the subject of discourse?

Consistent with the State policy to protect and promote the right to health of the people, Philippine procedural and substantive laws recognize the sanctity of information relating to health. Under the Revised Rules on Evidence, confidential communications between a patient and a physician are considered privileged and the physician cannot testify in a civil case on any matter relating to the patient’s diagnosis or treatment, unless the patient consents (Revised Rules on Evidence, Rule 130, Sec. 24). Further, under the Data Privacy Act of 2012, any data relative to an individual’s health as well as government-issued health records are considered sensitive personal information and may only be processed when so consented by the data subject, when laws or regulations otherwise allow, or under exceptional circumstances (Republic Act No. 10173, Secs. 3(h) and 13).

The Constitution is the paramount source of the duties of a public officer; particularly, the President. Therefore, when a person swears to undertake the duties of the President of the Republic of the Philippines, one is expected to faithfully abide by what the Constitution dictates.

Notably, Article VII, Section 12 of the Constitution mandates: “In case of serious illness of the President, the public shall be informed of the state of his health.”

This provision actually debuted in the 1987 Constitution as the 1935 and 1973 Constitutions did not expressly mandate this obligation.

In an attempt to enforce the Filipino’s right to be informed of the state of the President’s health, on April 13, lawyer Dino de Leon filed with the Supreme Court an Extremely Urgent Petition for Mandamus to Disclose President Duterte’s Health Record against Public Respondents President Duterte and Executive Secretary Salvador Medialdea. Parenthetically, a petition for mandamus operates to compel “the performance of an act which the law specifically enjoins as a duty resulting from an office” (Rules of Court, Rule 65, Sec. 3). This Petition was filed when Mr. De Leon’s Freedom of Information Request for President Duterte’s health records was rejected since the Malacañang Records Office was not in possession of any health records. Significantly, the Supreme Court dismissed the Petition for being unsubstantiated. It ruled that the disclosure of the status of the health of the President is not a ministerial act enforceable by mandamus and that there is no clear legal right to demand the disclosure.

This poses another question: when and how must the public be truly informed of the status of the health of the President?

A reading of Article VII, Section 12 of the Constitution shows that only when the President is seriously ill is it the time that the public’s right to be informed is activated. No mechanism is prescribed as to its enforcement nor any guideline is set forth in determining when a President is considered seriously ill.

In dissecting this provision, 1986 Constitutional Commissioner Blas F. Ople shed light as follows: “We are called upon to be more trusting with respect to the Office of the President that they will know what appropriate means to take in order to release this information to the public in satisfaction of the public’s right to know of the presidency. The burden is left to the Office of the President to choose the appropriate means of releasing the information” (Record of the Constitutional Commission No. 43, July 30, 1986). Relatedly, 1986 Constitutional Commissioner Yusuf R. Abubakar enunciated that “the state of health or analysis as to the actual condition of the President should be left to the President and his doctor” (Record of the Constitutional Commission No. 43, 30 July 1986).

If the interpretation of Article VII, Section 12 of the Constitution is to be based only on the foregoing, it seems that the disclosure is a political action solely dependent upon discretion of the President. It is therefore addressed to the President’s own sensibilities which, in turn, would reflect the collective leadership of the executive department.

While constitutional deliberations “are of value as showing the views of the individual members, and as indicating the reasons for their votes,” this is not controlling (Civil Liberties Union v. Executive Secretary, G.R. No. 83896, Feb. 22, 1991). Nonetheless, the Supreme Court invoked the above cited deliberations as one of the bases in dismissing the Extremely Urgent Petition for Mandamus.

To date, the constitutionality of Article VII, Section 12 has never been challenged. As demonstrated by the dismissal of the Extremely Urgent Petition for Mandamus, it seems that neither a Freedom of Information Request nor a Petition for Mandamus is the proper remedy to exercise the right of the public to information relating to the President’s health. Until the Supreme Court pronounces a definitive ruling as to the conditions and procedure to enforce this right or the Congress enacts a law enabling the exercise of this right, Article VII, Section 12 of the Constitution is merely a declared policy and acknowledgment of the public’s right to be informed. When and how? The Filipinos have yet to wait and see.

The demand for disclosure is a call for transparency. The Filipinos have every right to be assured that their leaders have the physical capacity and mental acuity to govern. The Filipinos deserve a stable executive department; most especially today, where every country is battling a pandemic. Otherwise, the execution of the laws will be paralyzed.

Most importantly, the right to be informed goes into the essence of a free country. As the Supreme Court proclaimed: “an informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution” (Valmonte v. Belmonte, Jr., G.R. No. 74930, Feb. 13, 1989).

Therefore, the plea for disclosure is not merely for informational purposes but delves into the very core of a democratic and republican state. After all, “sovereignty resides in the people and all government authority emanates from them” (Constitution, Article II, Section 1).

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Julienne Therese V. Salvacion is an Associate of the Litigation and Dispute Resolution Department (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.

(632) 8830-8000
jvsalvacion@accralaw.com