VICE-PRESIDENTIAL IMMUNITY FROM SUIT: A MYTH MOTHERED BY JUSTICE SECRETARY DE LIMA

by: CHERYL L. DAYTEC

Justice Secretary Leila de Lima reportedly issued a statement that the Vice President of the Republic of the Philippines enjoys immunity from suit during his incumbency  as the President does. She declared that the immunity applies to all impeachable officials.

The 'short' of my 'long' comment: De Lima is wrong that the Vice President  is immune from suit. If the President is not immune from suit, why should he be? Assuming the President is immune, the traditional reason for it -that he may be unimpeded in the exercise of presidential powers-- does not apply to the Vice President who has not one power under the Constitution.

Why should  the  Vice President be immune from suit when, in fact, the 1987 Constitution does not even state that the President who is higher than him, is?There has to be a reason why presidential immunity textually expressed in the 
1973 Constitution was dropped from the 1987 Constitution which however retained the provision on non-suability of the State enshrined in the previous Constitution. Presidential immunity  was a legal creation of Pres. Ferdinand Marcos. When his regime repudiated the 1935 Constitution in place of a new Constitution, he ensured that there would be a provision granting himself immunity from suit. Thus, Art. VII, Section 7 of the 1973 Constitution provided:  "The President shall be immune from suit during his tenure. Thereafter, no suit or whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure."

Presidential immunity  positioned Marcos above the law.In a functioning democracy, no one is above the law. No one is above the law, not even the President, especially not the President who, under a presidential system like that of the Philippine Government, must ensure the faithful implementation of the laws.

The Marcos regime, to this very day, is internationally known for having been a government of men and women and not of laws. Rule of law was repudiated in the name of an oppressive dictatorship. There is no need to be apocryphal about the consequences of presidential immunity from suit.

In 1986, Marcos was ousted during the so-called People Power Revolution. Having learned its lessons, the Filipino people newly emergent from the cocoon of tyranny, sought to dismantle legal structures that desecrated the rule of law and put a few self-proclaimed leviathans above it. One way of realizing this was by hurling presidential immunity  into the dustbins of history.

Thus, in the 1987 Constitution, there is already a very conspicuous absence of any provision to the effect that the President is immune from suit. It was the intent of the Filipino people, regardless of the intent of the constitutional drafters, to make the President of the Philippines accountable before the law. Accountability is a constitutional watchword under Section 1 of Article XI and is inherent in a functioning democracy. After all, the President is the chief implementor of laws. This becomes meaningless when, while he hoists the trident to enforce laws, he may not be made accountable while he sits when he violates them.

It is worth noting that the few decisions of the Philippine Supreme Court recognizing presidential immunity  under the 1987 Constitution  are friable. Its very tenacity  was discussed  in the case of  Soliven, et. al.v. Judge Makasiar, where the Court stated that  "(t)he rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being a Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention." Yet, Soliven disproved its own point. In this case, then President Corazon Aquino  sued journalist Louie Beltran for libel occasioned by the latter's report that she hid under the bed at the height of a coup d’ etat against her administration. This suggestion of being a lameduck President so enraged Ms Aquino that she dragged her accuser to court. She was not denied access to the courts. And why should she? She was also a citizen subject to the same rights and obligations as the next citizen. At any rate, the point here is that under the doctrine of necessary implications, if the President can institute complaints under the spirit of the Constitution, s/he may also be made to respond to complaints. And if s/he can sue while President, then his/her attention gets divided. Soliven thus allows the President's attention to be divided, which immunity seeks to prevent.

David v Arroyo's pronouncement on presidential immunity was merely an obiter dictum (or a "by the way" comment, for those who are not familiar with legal gobbledygook) but it would be cited later in Lozada v. Arroyo. Regardless of this, the Supreme Court in Davide  relied on the judgment of the US Supreme Court in Mississippi v. Johnson. This case was decided in the 1866 when the United States of America was engaged in a civil war which required that the President should not be distracted. To invoke this decision as a precedent is absurd considering that the exigencies obtaining in the United States at the time Mississippi was promulgated are not obtaining, even remotely, in the Philippines at present.

Philippine jurisprudence on presidential immunity is not supported by the Constitution. At the risk of belaboring the point, the textual or literal expression of presidential immunity present in the 1973 Constitution was dropped by the 1987 Constitution, which must be interpreted as abandonment by the people of a provision that could entrench tyranny.

Moreover, the principle of rule of law and the basic tenet that democracy is a government of laws and not of people pervade our Constitution in spirit and must be considered written there. It is also remarkable that the United States on whose Constitution was based the Constitution of the Philippines, abandoned absolute presidential immunity from suit as a doctrine. In 
US v Nixon, the Supreme Court of the United States (SCOTUS) rejected President Richard Nixon’s  claim of immunity from judicial processes because of executive privilege.

In Nixon v. Fitzgerald, a divided SCOTUS  ruled that an absolute presidential immunity for official acts was existing for reasons of public policy. The absence of such immunity "could distract a President from his public duties, to the detriment not only of the President and his office but also the Nation that the Presidency was designed to serve." The immunity according to the doctrine in Nixon applies only to official acts, but not to crimes and other unofficial acts. In Clinton v Jones, the SCOTUS said that a sitting President is not immune from suit for acts committed before election.
 
During his tenure, President George Bush was similarly haled to court. Among cases against him were Boumediene v. Bush, and Rasul v. Bush, both of which involved presidential acts, not private acts. That Nixon, Clinton, and Bush as sitting Presidents were sued and the SCOTUS did not dismiss the cases against them on grounds of immunity as our courts do when the President is in the same boat is a recognition that the US President is not, or is no longer, immune from suit as a rule. 

These are already telling indicia that the SCOTUS  has been departing from the undemocratic notion that the President is immune from suits, parallel to legal developments in other democracies in the world which have since rejected claims of presidential immunity from suit or immunity for heads of governments including presidents and prime ministers.

In the international community, what is currently recognized is immunity of heads of government for purely sovereign acts abandoning an antiquated legal relic that  sovereigns could not be fallible. Discarding presidential immunity merely affirms a basic tenet of democracy: that in democracies, there are no leviathans other than the sovereign people.

Geographically closer to the Philippines is Thailand. Last year, its Constitutional Court purged Thai Prime Minister Yingluck Shinawatra from office for abuse of power committed when she illegally transferred a civil service servant to another office more than three years ago. Along with the Prime Minister, other members of the cabinet who were in office at the time the transfer was effected were likewise ordered to step down.

For many of the reasons I cited, the National Union of Peoples' Lawyers disagrees that the President is immune from suit. We always implead the President in cases where acts of the Executive Branch are assailed.

Now, even granting that the President is immune from suit, the underpinning reason for the immunity does not obtain in the case of the Vice-President: the President should not be distracted from the exercise of presidential powers.Indeed, the President has many powers under the Constitution. But how many powers does the Vice President have under the Constitution? None at all. S/he is a spare tire for the presidency and that is not a power.When appointed to a Cabinet position, s/he exercises powers as an alter ego of the President but not as VP.

Thus, Justice Secretary De Lima's legal opinion that the  Vice President is immune from suit is so, so flawed. 
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