‘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.