“x x x.
Second issue:
Presidential immunity from suit
It bears stressing that since there is no determination of
administrative, civil or criminal liability in amparo and habeas data
proceedings, courts can only go as far as ascertaining responsibility or
accountability for the enforced disappearance or extrajudicial killing. As we
held in Razon v. Tagitis:[69]
It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing
the appropriate remedies to address the disappearance. Responsibility refers to
the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level
of their complicity to the level of responsibility defined above; or who are
imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the disappearance, so that the life
of the victim is preserved and his liberty and security are restored.[70] (Emphasis
supplied.)
Thus, in the case at bar, the Court of Appeals, in its
Decision[71] found respondents in G.R. No. 191805 with the exception of Calog,
Palacpac or Harry to be accountable for the violations of Rodriguezs right to
life, liberty and security committed by the 17th Infantry Battalion, 5th
Infantry Division of the Philippine Army. [72] The Court of Appeals dismissed
the petition with respect to former President Arroyo on account of her
presidential immunity from suit. Rodriguez contends, though, that she should remain
a respondent in this case to enable the courts to determine whether she is
responsible or accountable therefor. In this regard, it must be clarified that
the Court of Appeals rationale for dropping her from the list of respondents no
longer stands since her presidential immunity is limited only to her
incumbency.
In Estrada v. Desierto,[73] we clarified the doctrine that a
non-sitting President does not enjoy immunity from suit, even for acts
committed during the latters tenure. We emphasize our ruling therein that
courts should look with disfavor upon the presidential privilege of immunity,
especially when it impedes the search for truth or impairs the vindication of a
right, to wit:
We reject [Estradas] argument that he cannot be prosecuted
for the reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed,
on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing
that the Impeachment Court is Functus Officio. Since the Impeachment Court is
now functus officio, it is untenable for petitioner to demand that he should
first be impeached and then convicted before he can be prosecuted. The plea if
granted, would put a perpetual bar against his prosecution. Such a submission
has nothing to commend itself for it will place him in a better situation than
a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in
the Constitutional Commission make it clear that when impeachment proceedings
have become moot due to the resignation of the President, the proper criminal
and civil cases may already be filed against him, viz:
xxx xxx xxx
Mr. Aquino. On another point, if an impeachment proceeding
has been filed against the President, for example, and the President resigns
before judgment of conviction has been rendered by the impeachment court or by
the body, how does it affect the impeachment proceeding? Will it be necessarily
dropped?
Mr. Romulo. If we decide the purpose of impeachment to
remove one from office, then his resignation would render the case moot and
academic. However, as the provision says, the criminal and civil aspects of it
may continue in the ordinary courts.
This is in accord with our ruling in In Re: Saturnino Bermudez that incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and
tenure but not beyond.
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)
Further, in our Resolution in Estrada v. Desierto,[75] we
reiterated that the presidential immunity from suit exists only in concurrence
with the presidents incumbency:
Petitioner stubbornly clings to the contention that he is
entitled to absolute immunity from suit. His arguments are merely recycled and
we need not prolong the longevity of the debate on the subject. In our
Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that given
the intent of the 1987 Constitution to breathe life to the policy that a public
office is a public trust, the petitioner, as a non-sitting President, cannot
claim executive immunity for his alleged criminal acts committed while a
sitting President. Petitioner's rehashed arguments including their thinly
disguised new spins are based on the rejected contention that he is still
President, albeit, a President on leave. His stance that his immunity covers
his entire term of office or until June 30, 2004 disregards the reality that he
has relinquished the presidency and there is now a new de jure President.
Petitioner goes a step further and avers that even a
non-sitting President enjoys immunity from suit during his term of office. He
buttresses his position with the deliberations of the Constitutional
Commission, viz:
Mr. Suarez. Thank you.
The last question is with reference to the Committee's
omitting in the draft proposal the immunity provision for the President. I
agree with Commissioner Nolledo that the Committee did very well in striking
out this second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members
not agree to a restoration of at least the first sentence that the president
shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations
almost daily?
Fr. Bernas:
The reason for the omission is that we consider it
understood in present jurisprudence that during his tenure he is immune from
suit.
Mr. Suarez:
So there is no need to express it here.
Fr. Bernas:
There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that explicit and to add
other things.
Mr. Suarez:
On the understanding, I will not press for any more query,
madam President.
I thank the Commissioner for the clarification.
Petitioner, however, fails to distinguish between term and
tenure. The term means the time during which the officer may claim to hold the
office as of right, and fixes the interval after which the several incumbents
shall succeed one another. The tenure represents the term during which the
incumbent actually holds office. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent. From the deliberations,
the intent of the framers is clear that the immunity of the president from suit
is concurrent only with his tenure and not his term.[76] (Emphasis supplied)
Applying the foregoing rationale to the case at bar, it is
clear that former President Arroyo cannot use the presidential immunity from
suit to shield herself from judicial scrutiny that would assess whether, within
the context of amparo proceedings, she was responsible or accountable for the
abduction of Rodriguez.
X x x.”
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ: NORIEL H. RODRIGUEZ, Petitioner, versus 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.
