Thursday, December 29, 2016

Rethink presidential immunity from suit - Federico D. Pascual -

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IT IS TIME the present Supreme Court revisited the issue of immunity from suit of the president – without reference to President Duterte.

The current debate is centered, unfortunately, around the petition filed with the tribunal by Sen. Leila de Lima for a writ of habeas data against President Duterte claiming violations of law protecting women’s rights.

We say “unfortunately,” because the question has taken on undue political color in light of the President’s and the senator’s seeming mutual loathing. We raise our small voice to plead that the issue of presidential immunity be reexamined separately from the De Lima question.

If a new petition is needed for a fresh legal perspective, we beg independent lawyers’ groups, possibly joined by law deans, to put together a bid to revisit the question. De Lima and even the incumbent president, should be mere footnotes, if ever.

Upon filing of a proper petition, Supreme Court may go back to the Constitution, upon which bedrock all doctrine and practice should be based. A practice that has been wrong from the start, for having been based on political or whatever extraneous reasons, must not be carried on as right.

Without much reflection, many people seem to assume that the President of the Philippines is or should be immune from suit — as decreed by then president Ferdinand Marcos in the 1973 Constitution that he wrote for his own interest.

The same immunity-from-suit provision was not in the older 1935 Constitution. The self-serving section was a mere invention of the Dictator for obvious reasons. Budding dictators may be tempted to invoke it.

Many of us who have grown tired of abuse of presidential prerogatives and entitlements find it significant that Section 15, Article VII, of the Marcos Constitution clothing the “incumbent President” (Marcos) with immunity was not carried over to the current Constitution.

Read Section 15, and laugh or weep: “The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.”

The immunity provision was purposely dropped, or excluded, from the 1987 Constitution. With reason, because NO ONE — especially the President who is sworn to “preserve and defend its Constitution (and) execute its laws” — is above the law.

If presidential immunity were correct doctrine, all the cases of graft, human rights violations, etc., versus Ferdinand Marcos should have been thrown out without further discussion.

In the United States, from which we have copied many legal systems, the President – the most powerful person on earth – can be sued by his victims. But here, the Philippine president is allowed to hide behind a false immunity cover that most everyone is afraid to question.

Some lawyers tell us that although presidential immunity is not in the Constitution, it is honored in practice and by tradition. They also cite some jurisprudence and Supreme Court decisions that appear to justify it despite its being patently unjust and unconstitutional.

These post-1986 statutes and SC decisions incorrectly applying, adopting or respecting presidential immunity from suit are unconstitutional on the basis of the current 1987 Constitution. This grave error and injustice should be corrected immediately.

(First published in The Philippine STAR of December 29, 2016)

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