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. 

MORE ON THE MARCOS HERO'S BURIAL ISSUE

Why the Marcoses want Ferdinand buried a hero

...And why Bongbong Marcos is now a senator

By Raissa Robles

By having the dictator Ferdinand Marcos buried at Libingan ng mga Bayani, the Marcos clan will be able to erase his sordid and wicked past and have him declared a hero.

Then Senator Bongbong Marcos will run for President five years from now and package himself as – of course – THE SON OF A HERO!

The Marcoses’ ultimate objective is to get back all the local assets seized from the family as ill-gotten loot as well as all the assets abroad that remain frozen.

It’s really all about money.

It’s also the reason why Bongbong Marcos ran for the Senate. To get back all that money.

But his voters didn’t know that. They saw him as a handsome environmentalist – the governor who built windmills in his province.

That’s just what he wanted you to think. He planted windmills in the voters’ minds. And now, do you hear him vigorously advocating windmills?

Why Bongbong Marcos won as senator

After he won a Senate seat, I asked myself why he won.

Slowly I realized certain things.

First, 1/3 of the voters in the Senate elections, which he won, hardly knew Ferdinand Marcos and Imelda Marcos’ evil deeds. They were too young.

Just before the 2010 elections, Pulse Asia shared with me some data they used for their political surveys. Among the data they gave me was the breakdown of voters according to age. Here it is:

Based on government data, Pulse Asia broke down 2010 registered voters according to age

Notice that those ages 18 to 24 comprised 15% of all the voters. And those ages 25 to 34 years old comprised 22% of all voters.

Ferdinand Marcos was booted out of the country 24 years before the May 2010 polls. This means, that 15% of all voters last year were not yet born when the Marcos family fled in fright. This also means that another 22% of all the registered voters were one to 10 years old when they left.

Schoolbooks kept silent on the Marcoses

And when this 15% and 22% of potential voters were growing up and going to school, the books they used – which were supposed to impart to them what’s right and wrong – remained stunningly silent on how Marcos tortured over 10,000 Filipinos and stole the nation blind.

You know what torturing 10,000 Filipinos is like? I made a rough calculation. I divided the figure by 14 years of the dictatorship – that means, 714 people are tortured every year. Or roughly 59 a month.

The average Filipino never really grasped the amount of torturing being done because there was no free press. The major newspapers – Daily Express and Times Journal – were run by Imelda’s younger brother Kokoy. The Bulletin was run by Marcos’ crony Hans Menzi.

And when I speak of torturing I do not mean being made to dance suggestively like showbiz host Willie Revillame made Jan-Jan dance, or even being hazed in a fraternity.

Marcos had an elaborate torture machine that rivaled what the Japanese Kempeitai did to capture Filipino guerrillas in World War II. Have you really heard the horror tales?

NO, because the military suppressed these.

Imelda Marcos performed a very crucial role during the dictatorship. She was the deodorizer. She spoke of Martial Law in glowing terms by constantly referring to the edifices she caused to be built. I covered her for Business Day newspaper.

It was what a reporter would call a hardship beat because non-press release stories were hard to come by. And I had to skate delicately to make sure I did not get her so mad that she would have me picked up.

Sure, the Marcos conjugal dictatorship built hospitals, roads and the longest bridge in the country. But they extracted huge COMMISSIONS AND MARK-UPS from these projects.

Remember, that was what happened to the Bataaan Nuclear Power Plant. The attendant corruption made the integrity of the physical structure highly questionable. And you and I shouldered the payments and the loans for it to the tune of US$155,000 a day. The entire loan was only recently repaid.

Without the rampant graft and corruption, the Marcos couple could have built much, much more. Because of this, I’m not impressed with those who hero-worship them on that basis.

Presidents after Cory went soft on the Marcoses

Only President Corazon Aquino was really hell-bent on running after the Marcoses. All subsequent presidents sought a political and even financial accommodation with that family.

The last one, especially more so.

Aaaaah. Sweet love fest between President Arroyo and Imelda Marcos

We don’t know yet how the incumbent President Benigno Aquino III will behave toward the Marcoses. But if his deputy spokeswoman Abigail Valte is any indication, it will be just business as usual.

Before I go on to discuss why Marcos’ wicked ways are now nearly forgotten, let me just point out an interesting bit of fact.

Bongbong Marcos won with 13 million votes when the number of registered voters was 51 million. Using Pulse Asia’s assumptions, we see that 37% of that 51 million (or those who were not yet born or were at least 10 years old when the Marcoses fled) is equivalent to roughly 18 million voters.

These figures would seem to indicate that even among the youth, Marcos did not get all the votes. It would be interesting to break down his votes according to age. But unfortunately, I don’t have those figures.

We also have to factor in the fact that he would have obtained most of the Ilocano votes – that would be from Regions 1 and 2 – which had nearly 5 million registered voters last year.

Bongbong Marcos got roughly 1/3 of all the votes cast last year.

Why public opinion is now for Marcos

Those who know a lot and those who came face to face with the evilness of that dictatorship will probably say people have forgotten.

I would explain what happened this way.

The Marcos cases of torture and plunder were mostly fought and won overseas at a time whene there was no Twitter and Facebook to broadcast the proceedings and the twist and turns of the court battles.

Amid this information gap, Imelda Marcos swayed public opinion by saying again and again that she and her husband have never been convicted. She even obtained a certification from the Philippine judiciary to this effect.

She is right insofar as Philippine courts are concerned. Wait, let me correct myself. I remember now that the family lost the mother civil court suit in Manila - which Switzerland used as the basis for sending over their Swiss bank loot to Manila.

The family lost terribly in Switzerland after a costly and lengthy court battle. They lost bitterly, thanks to the late Presidential Commission on Good Government chief Haydee Yorac.

But again, because this happened in the Alps, it hardly made an impression on Filipinos. It hasn’t been recorded in many schoolbooks.

In addition, in the last quarter of a century, Imelda Marcos has frequently slapped libel suits on those who called or wrote that Ferdinand Marcos is a plunderer and a thief. That has had a chilling effect on school book authors.

Marcos gambit – a hero’s burial

The family’s latest gambit is to bury Ferdinand Marcos at Libingan ng mga Bayani – the Heroes’ Cemetery. That could also bury the long-pending court suits accusing Ferdinand and Imelda with financial shenanigans.

The reason why these court suits have hardly moved is that the Marcoses have intentionally delayed them by changing lawyers again and again. Also, as I said earlier, the Philippine presidents who came after Cory used the court cases as a leverage for a financial compromise settlement.

Maybe, the present government could institute weekly hearings to have Imelda Marcos’ dollar-salting cases resolved. She thought she had already thrown them out of court but the Supreme Court reversed this and said she has to be tried for dollar-salting.
Where are the Marcoses getting all that money

All these would make you wonder where the Marcos family is getting all their money for litigation, high fashion and expensive properties. Plus the money to field Bongbong Marcos for the Senate, Imee Marcos for Ilocos governor and Imelda Marcos for Congress last year.

Money is eternally flowing from somewhere and maybe a little judicious digging could uncover the rich source.

Burying Marcos would cost taxpayers much money

Personally, I think it’s not feasible to bury Ferdinand Marcos at Libingan ng mga Bayani – but for a totally different reason. It would continuously cost us, taxpayers, a lot of money.

The government would have to place a 24-hour guard on his grave to ensure no one will dig up the (wax?) body or spit at it.

Hmmm. This could be grounds for filing a taxpayer suit against such a nincompoop proposal.

By the way, does anyone know if we have a law that allows people NOT to bury their dead but to keep them displayed above ground? Are the Marcoses violating any law on public health and sanitation?