Thursday, November 24, 2016

Presidential immunity from suit under the 1987 Constitution


A.   Legal Theory of Duterte and his Solicitor General.

I do not subscribe to the legal theory of the Solicitor General that President Rodrigo Duterte has absolute immunity from suit even for wrongdoings committed during his term.

The Solicitor General cites the old Marcos-imposed 1973 Constitution, Section 17 Article VII of which provided that "the President shall be immune from suit during his tenure”; that “thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure”; and that “the immunities herein provided shall apply to the incumbent President (i.e., Marcos) referred to in Article XVII of this Constitution." He claims that the 1973 Constitution “did not distinguish official from unofficial acts”.

B.    The 1987 Constitution on Accountability and Good Governance.

The theory of the Solicitor General contradicts the constitutional principle of accountability and good governance mandated by Article XI of the 1987 Constitution, which governs the present dispensation. The relevant provisions of Article XI of the 1987 Constitution are reproduced hereinbelow:

x x x.
ARTICLE XI - Accountability of Public Officers
SECTION 1.
Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
SEC. 2.
The President, Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
X x x.
SEC. 12.
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any agency, subdivision or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the actions taken and the result thereof.
SEC. 13.
The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts and transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.
(8) Promulgate its rules and procedure and exercise such other powers or perform such functions or duties as may be provided by law.
X x x.
SEC. 15.
The right of the State to recover properties unlawfully acquired by public officials and employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel.
SEC. 16.
No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.
SEC. 17.
A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.
SEC. 18.
Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.
X x x.

C.    Duties of the Executive to preserve and defend the Constitution, execute its laws, do justice to every man, and consecrate himself to the service of the Nation.

It will be noted that Article VII of the 1987 Constitution (”Executive Department”) does not contain any provision granting absolute or limited immunity from suit to the Executive.

The 1987 Constitution did not adopt the Section 17 Article VII of the Marcosian 1973 Constitution which granted absolute immunity from suit to the Executive (Marcos).

In fact, the current Article VII of the 1987 Constitution is replete with provisions on the constitutional principles of accountability and good governance that should guide the Executive as a public servant.

x x x.
ARTICLE VII - Executive Department
X x x.
SEC. 5.
Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)
X x x.
SEC. 13.
The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.
X x x.
SEC. 17.
The President shall control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.
X x x.

D.   The Preamble of the 1987 Constitution Speaks of the “Common Good” and the “Rule of Law”.

The Preamble is the spirit and the soul of the Constitution. It contains the dreams and aspirations of the people. The Preamble of the 1987 Constitution speaks of the “common good”, “independence and democracy”, the “rule of law”, and a “regime of truth, justice, freedom, love, equality and peace.”

x x x.
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. He must observe the tenets of social justice.
X x x.

E.    The Declaration of Principles and State Policies of the 1987 Constitution.

In a republican democracy, like the Philippines, sovereignty resides in the people, not in the Executive as the Head of State.  He is not above the law. As a public servant, he has the duty to protect and defend the life, liberty and property of the people and their general welfare. He must protect the human rights of the people and the human dignity of every citizen. He must be a man of honesty and integrity. He must observe the principle of “full disclosure”.

x x x.
ARTICLE II - Declaration of Principles and State Policies
SEC. 1.
The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
X x x.
SEC. 5.
The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
X x x.
SEC. 10.
The State shall promote social justice in all phases of national development.
SEC. 11.
The State values the dignity of every human person and guarantees full respect for human rights.
X x x.
SEC. 27.
The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
SEC. 28.
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
X x x.
  
F.    Bill of Rights.

The Executive is mandated by the Constitution to protect the constitutional rights of the people. Article III, The Bill of Rights, of the 1987 Constitution is sacred. The Executive may not violate any one of the human rights mandated therein.

x x x.
ARTICLE III - Bill of Rights
SEC. 1.
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
SEC. 2
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
SEC. 3.
(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
SEC. 4.
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.
SEC. 5.
No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
SEC. 6.
The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.
SEC. 7.
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
SEC. 8.
The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
SEC. 9.
Private property shall not be taken for public use without just compensation.
SEC. 10.
No law impairing the obligation of contracts shall be passed.
SEC. 11.
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.
SEC. 12.
(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.
SEC. 13.
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
SEC. 14.
(1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
SEC. 15.
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it.
SEC. 16.
All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
SEC. 17.
No person shall be compelled to be a witness against himself.
SEC. 18.
(1) No person shall be detained solely by reason of his political beliefs and aspirations.
(2) No involuntary servitude in any from shall exist except as punishment for a crime whereof the party shall be duly convicted.
SEC. 19.
(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.
SEC. 20.
No person shall be imprisoned for debt or non-payment of a poll tax.
SEC. 21.
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
SEC. 22
No ex post facto law or bill of attainder shall be enacted.
X x x.” 

G.   The Current Jurisprudence on the Absolute Immunity from Suit of the Executive Must be Revisited.

In the 2006 case of  PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents, G.R. No. 171396, May 3, 2006, the Supreme Court upheld the absolute immunity from (criminal and civil) suit of the President “during his tenure.”


IT MUST BE REVISTED AND CLARIFIED in the interest of justice and the promotion of the rule of law, as well as for the guidance of the Bench and the Bar.

In the said decision, the Supreme Court held, thus:

x x x.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law.

It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such.

Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions.

Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.

However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people68 but he may be removed from office only in the mode provided by law and that is by impeachment.69

X x x.

In the subsequent 2011 case of IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ: NORIEL H. RODRIGUEZ, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name HARRY, ANTONIO CRUZ, ALDWIN BONG PASICOLAN and VINCENT CALLAGAN, Respondents, G.R. No. 191805, November 15, 2011, the Supreme Court limited the scope of presidential immunity by holding that:

It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.



The doctrine of “limited immunity from suit” is reproduced hereinbelow:

x x x.

xxx. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.

The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability.

It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.

In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings.

The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality; it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”

In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only “official acts.”

Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.[74] (Emphasis supplied)

X x x.

H.  CONCLUSION

I submit that although under the constitutional doctrine of “separation of powers”, neither the judiciary nor the legislature has coercive power over the President, the said doctrine should be limited only to acts done within the limits of the President’s constitutional authority.  

I agree that the courts have no jurisdiction over the President when he is sued for acts performed pursuant to his official duties.

However,  committing a crime or an wrongful act is not a part of the President’s official or constitutional duties.

A crime or a wrongful act committed by a "sitting president" is an unofficial act.

It is unconstitutional and unjust to protect the guilty "sitting President" with the mantle of absolute immunity from suit for committing a  criminal or wrongful act "during his tenure in office."

It is violative of the constitutional principles of accountability and good governance.

The Supreme Court should revisit and clarify the current doctrine on presidential immunity from suit to promote the rule of law and to insure the fairness of the administration of justice, as well as for the guidance of the Bench and the Bar.

Atty. MANUEL J. LASERNA JR.
Partner, Laserna Cueva-Mercader Law Offices
Las Pinas City (Est. 1994)
Professor of Law, FEU, Manila, 1985-2006
Founder, Las Pinas City Bar Association, Inc., 2001
Vice Pres., IBP PPLM Chapter, 2004-2007
Admitted to the Philippine Bar, 1985
3rd Place, 1984 Bar Exams, 90.95%
AB Journalism, UP Diliman, QC, 1975
Bachelor or Laws, FEU, 1984, cum laude
Master of Laws, UST, 2000 (cand.)
Cocofed Law Scholar, 1980-1984
FEU Gaduate Studies Fellow, 1998-2000