A sitting President is immune from any suit. Absolutely



‘IN our view, the doctrine of presidential immunity from suit cannot be used as a shield to block a case like this which is really one of historical and transcendental importance.”So says law school dean Jose Manuel Diokno.

Diokno further said that President Rodrigo R. Dutertecannot be protected by his presidential immunity as his acts, which are now being questioned before the Supreme Court, were not part of his official presidential duties and responsibilities.

With all due respect to his credentials and scholarly background, I beg to disagree with Diokno’s view on this matter. A sitting President is absolutely immune from suit (absolute immunity).On the other hand, Diokno is referring to what we call “qualified immunity.”

As a dean of a new and prestigious law school, Diokno should have been more circumspect with his pronouncements considering that he has law students who will become lawyers in the future, all of whom might end up carrying with them a wrong legal perception.

Constitutional basis of presidential immunity

A perusal of the 1935 Constitution of the Philippines (ratified on May 13, 1935), particularly that of Article VII, The Executive Department, did not mention presidential immunity in any of its eleven sections.

Presidential immunity first appeared in the 1973 Constitution of the Republic of the Philippines (ratified on January 17, 1973 and amended in 1976, 1980 and 1981). The original 1973 Constitution, in Section 17 of Article VII, The President and Vice-President, stated it clearly as follows:

“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 amended 1973 Constitution, still under Article VII, reduced it to a one-liner: “Section 7.The President shall be immune from suit during his tenure.”

The 1987 Constitution of the Philippines restored most of the provisions of the 1935 Constitution. Article VII was restored to “The Executive” and removed Section 7 pertaining to presidential immunity.

Supreme Court decisions

The decisions of the Supreme Court have an important impact, not only on the body of laws, but on the society as well. Elementary is the doctrine that any decision of the Supreme Court shall form part of the laws (case law) of the land. Most lawyers would refer to this as jurisprudence. However, the technical meaning of jurisprudence is “the philosophy of law, or the science which treats of the principles of positive law and legal relations.”
Thus, decisions of the Supreme Court have the force and effect of the law.

The absolute immunity of a sitting President of the Philippines has been settled by the Supreme Court in various cases, one of which is Lourdes Rubrico et. al. vs. Gloria Macapagal-Arroyo et. al. (G.R. No. 183871, 2010). The Court said,

“Petitioners first take issue on the President’s purported lack of immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.”

“Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution.”

The high court even cited a previous ruling in seven consolidated cases (David et. al. vs. Macapagal-Arroyo et. al., G.R. No. 171396, 2006), which rationalized it in this manner–

“Settled is the doctrine that the President, during his tenure of office or actual incumbency,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.”

Verily, a sitting President, during his tenure of office,may not be sued in any civil or criminal case. Further, there is no need to provide for it in the Constitution or the law as it is deemed inherent in the Office of the President.

The main reason for this absolute immunity is that itwill degrade the dignity of the high office of the President if he can be dragged into court litigations. Moreover, 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 as head of state.

What is the writ of habeas data?

The writ of habeas data is a judicial remedy available to any person to protect his or her right to control information regarding himself or herself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.

This type of writ is an independent and summary remedy to protect the right to privacy, especially the right to informational privacy.

In addition, the proceedings for the issuance of the writ of habeas data do not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the court may a) grant access to the database or information; b) enjoin the act complained of; or c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.

Petition for writ of habeas data vs the President

Dean Diokno insists that Senator Leila de Lima’s filing of a petition for a writ of habeas data is a “test case.” Well, for the information of the public, there is already a decided case relative to the issuance of a writ of habeas data against an incumbent President.

In the case of Noriel Rodriguez vs. Gloria Macapagal-Arroyo (G.R. No. 191805, 2011), which was penned by Chief Justice Sereno, the Supreme Court stated,

“At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the protection of the people’s rights to life, liberty and security. The rules on these writs were issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.The Rule on the Writ of Amparo took effect on 24 October 2007, and the Rule on the Writ of Habeas Dataon 2 February 2008.”

It continued: “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.”

Thus, it is very clear that the Court of Appeals dismissed the petition with respect to then President Arroyo on account of her presidential immunity from suit. It bears stressing that the petition before the Court of Appeals was filed in December 2009 and decided on April 2010 – during the incumbency of then President Arroyo.

The Supreme Court added, “we clarified the doctrine that a non-sitting President does not enjoy immunity from suit, even for acts committed during the latter’s tenure. xxx we reiterated that the presidential immunity from suit exists only in concurrence with the president’s incumbency.”

So there you are. The Presidentenjoys immunity from any suit. However, this privilege extends only during the term and incumbency of the President.

Bar examination question

Reproduced below is one of the questions given in the 2011 bar examinations. This is Question No. 43 in the Questionnaire for Political Law (Set A).

“43. During his incumbency, President Carlos shot to death one of his advisers during a heated argument over a game of golf that they were playing. The deceased adviser’s family filed a case of homicide against President Carlos before the city prosecutor’s office. He moved to dismiss the case, invoking presidential immunity from suit. Should the case be dismissed?”

Possible answers (multiple choice):

“A. Yes, his immunity covers his interactions with his official family, including the deceased adviser.”

“B. No, his immunity covers only work-related crimes.”

“C. Yes, his immunity holds for the whole duration of his tenure.”

“D. No, his immunity does not cover crimes involving moral turpitude.”

The Supreme Court’s answer is “C.” Those who answered “C” were given full credit for that number.
No offense meant, but based on his latest utterances that the acts complained of are beyond the official functions of the President, will Dean Diokno now tell his law students that the correct answer should be “B”?

I beg the indulgence of Dean Diokno.This is just a scholarly discussion of the subject. He was my lecturer in four of the subjects that I attended last week as part of the Mandatory Continuing Legal Education (MCLE) for lawyers. I, in fact, learned some new things from his lectures.

Well, going back to the main issue, let us just wait for the Supreme Court to decide. My insight tells me that the Supreme Court will dismiss the petition on the ground that a sitting President enjoys presidential immunity from any and all suit.



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  1. Its just very simple. The President during his incumbency is immune from suit to perfectly discharge his office. He is not actually above the law because he will still have time in court when his incumbency comes to an end.

  2. Yonkers, New York
    12 November 2016

    Most lawyers are in the bad habit of indulging in esoteric legal technical technicalities.

    From where I sit, the basic or fundamental tenet or doctrine is that “No man is above the law.”

    And that applies to a sitting President. If he or she commits a crime defined in the

    Revised Penal Code, he should be charged criminally before a court of proper

    jurisdiction. If found guilty beyond a reasonable doubt, he or she goes to prison; if not

    he or she goes free. If he or she goes to prison, the Constitution has the remedy: The Vice

    President auitomatcally assumes legally the functions of President.


  3. “The main reason for this absolute immunity is that it will degrade the dignity of the high office of the President if he can be dragged into court litigations. Moreover, 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 as head of state”.

    This is pure and simple, the case file against PD30 was triggered not by the performance of his duty as president, but rather and obvious personal act of destroying D5 on the pretext of drug involvement. Therefore, the Dean of Law School maybe right and PDU30 act is out of this qualifying description on absolute immunity.

    Naaamoy ko kung sino ang sumisipsip kay PD30 dito, nakakahiya naman. Puro talaga kayo bobo.
    Akala ko naman matalino yung journalist na ito.

    Haaaaay, kailan pa uunlad ang ating bansang Pilipinas.

  4. So in plain language,a sitting President involved in criminal activity is above the law. But such is the definition of “corruption in the highest levels of govt”. The intent to preserve the dignity of the office is admirable, however history has demonstrated the undesirable consequence of this edict: corruption associated with many former Presidents in Phil history. In no instance of post-term allegation, acusation, imprisonment etc. of a President has the Consequences of the corruption been reversed or eradicated from Phil society. The reality is you are defending Constitutionally Protected Corruption in the highst office of the land and you fail to explain why the Filipino people have to suffer the repeated consequences of corruption on their society, other than to repeat ad nauseum ” It is constitutional”. What is needed to move the Phil forward is definitely not obstructionism from legal scholars. Neither is it a SC which condones such legally protected corruption and totally ignores the damages said corruption inflicts on society. Other than changing the law or amending the constitution, only the SC can reign in corruption or criminal activity “at the highest levels of Govt”. Unfortunately, they have consistently demonstrated their ability to condone society-damaging behavior at all levels of Govt using the phrase “It is legal”. It is a shame, is what it is. I am sure that the SC is aware that illegal activity renders all participants vulnerable to “leverage” ( blackmail, extortion, etc), therby furthering and encouraging corruption throughout the Govt and industry. Might be shameful, but it is legal. But where does that leave our children and grand children? In Phil society, “trickle down corruption” has been more effective than “trickle down economics”, especially with the narcotic contribution. No one, in the country can deny this fact.

  5. What a brilliant comments and answers, you can not do this without doing your homework,i’m sure justices of the SC will take this column as a reference so no need for them to open their law books.Keep on writing Sir, more power.

    • It’s a brilliant comments.
      This is a another test for the Supreme Court Justices, follow to laws or follow emotions and political side. Mr. Marcos burial was a good test case, sadly 5 SC Justices used their emotions.

  6. I was taught by my parents and in school that nobody is above the law. So folloeing your statement, both my parents and my school teachers are liars.

  7. Leodegardo Pruna on

    Agree!l It is emotion not intelligence which is overwhelmingly controlling the minds of the President’s action on the case of de Lima. These people are the human rights advocates who only know about the rights of one party at the expense of the other. And, these are the people who are colored yellow. God bless the Philippines.

  8. The principle here is that for the good of the country, we do not want a President distracted by civil or criminal suits. We want a President to devote all of his attention to running the country. If we would allow Presidents to be taken to court, it would deprive the people of a President. It would be like peoples vote was taken away and replaced by the one person who brought a suit. The law is very clear. Sitting Presidents are immune from suit.