Blog Lecture No. 51: Presidential Immunity

Sorry to have “gone” so long folks.

Been in some sort of dry spell/rut lately. Too much worrying.

But I will try shake it off with a “mini-series” on immunities.

There are three immunities I will tackle in this “mini-series,” namely:

1. Presidential Immunity
2. Parliamentary Immunity
3. State Immunity

But I will tackle presidential immunity first.

What is the legal concept of presidential immunity?

Simply put, it is the elementary principle that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.” (In re: Bermudez, G.R. No. 76180, 24 October 1986)

Where is this found in the law?

Peculiarly, this concept has no constitutional basis. There is no provision on this in the 1987 Constitution.

The basis can be found in jurisprudence, which forms part of the law of the land.

Why is an incumbent president immune from suit?

“Being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.” (from the same case I cited above)

“The 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 the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.” (Soliven vs. Makasiar, G.R. No. 82585, 14 November 1988)

Hence, the President cannot be thinking of things like Garci, fertilizers, vaccines, etc. The President should be given enough space to concentrate on the job at hand, like bolstering up the economy and stuff like that.

But does this mean an incumbent President is invulnerable (like Superman) to any suit?

Of course not. This does not take away a sitting president’s accountability. For that an incumbent president must be impeached first then removed. After this such removed president no longer enjoys immunity.

Does this mean the president, while in office, cannot also sue others?

No. Presidential immunity is a privilege of the president.

Remember the case of President Aquino sued Luis Beltran, et. al. for libel. Part of the defense of Beltran is presidential immunity also carries with it the disability to file suit.

In disposing of this argument, the Supreme Court said in that same case of Soliven vs. Makasiar said:

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court’s jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President’s prerogative. It is a decision that cannot be assumed and imposed by any other person.

So can this immunity be waived?

Yes. If an incumbent President files a suit (be it civil or criminal), such person shed the protection of immunity and submits to the jurisdiction of the court.

What is the scope of such immunity?

According to this link, “immunity should extend only to acts in performance of particular functions of his office because immunities are grounded in “the nature of the function performed, not the identity of the actor who performed it.” This was based on the US case of Clinton vs. Jones.

Hence, if an incumbent President is being sued as a private person in a private capacity (not involving the office of the president), the immunity cannot be invoked.

With all due respect to the one that wrote that, I tend to disagree. Based on the concept that an incumbent President must be assured the exercise of Presidential duties and functions free from any hindrance or distraction, I submit that privilege of immunity likewise covers all other cases. Such suits can be commenced when the privilege of immunity has been lifted.

Of course, this is just my opinion and there is no court case here that deals with this issue.

So next time, I will lecture on congressional immunity.

Maybe.

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