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The Manila Times
Rep. Edcel C. Lagman’s
Weekly Thursday Column

THE recent outbursts of President Rodrigo Duterte against the Commission on Audit (COA) give ample reason for the review of the doctrine of presidential immunity from suit.

The President violated the Constitution when he commanded COA to stop flagging executive departments for deficiencies in the utilization of their budgets, which derailed the Covid-19 response. He was culpably unmindful that the COA is an independent constitutional watchdog that is not under his jurisdiction and not accountable to him. COA safeguards the use of the people’s money from official negligence and corruption.

The President also illegally ordered COA not to publish its audit reports, contrary to the legal requirement of posting them on its website and violative of the people’s constitutional right to be informed on the disbursement of public funds. The President, likewise, unlawfully ordered government agencies to defy the audit recommendations of State auditors.

Had there been no presidential immunity from suit, would Duterte’s reaction to the COA’s annual audit reports been more civil and circumspect?

Many erroneously assume that presidential immunity from suit is guaranteed by the Constitution. Both the 1935 and 1987 Constitutions do not provide such immunity. It is only the 1973 Marcos Constitution which ordained that “[t]he 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.” (Section 15 of Article VII).

The dictator Ferdinand Marcos made sure that he would be insulated from lawsuits for his official acts and personal actuations, however corrupt, odious, and repressive. He went further by perpetually extending his immunity after his tenure for his official acts, including those of subalterns who followed his orders.

This provision in the 1973 Constitution was not retained in the 1987 Constitution. The 1986 Constitutional Commission followed the position of Fr. Joaquin Bernas that no provision was necessary since “it was already understood in Philippine jurisprudence that a president may not be sued during his tenure.” But the president’s immunity after his tenure was rejected.

Consequently, presidential immunity from suit is based not on the Constitution, but on case law or decisions of the Supreme Court. Thus, David v. Macapagal-Arroyo (May 3, 2006) held: “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.” This was reiterated in Rubrico v. Macapagal-Arroyo (Feb. 18, 2010) and De Lima v. Duterte (Oct. 15, 2019), among others.

De Lima v. Duterte ruled that the incumbent president’s immunity covers both his official and personal acts – “immunity applies regardless of the personal or official nature of the acts complained of.”

The president’s immunity from suit traces its ancestry to the maxim Rex non potest peccare, which means “the King can do no wrong.” The absolute immunity of the sovereign was well-entrenched in England even as it was practiced in ancient dynasties and empires. Extreme exponents of this maxim contend that “Kings were not only legally unaccountable but actually above the law.” The renowned English jurist Blackstone commented that under this tenet the king “is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing; in him is no folly or weakness.” But in reality, the king, like the president, does many wrongs.

When the feudal lords controlled parliament and gained political power, the Crown started to lose its preeminence. The English empire soon encountered a financial crisis for overextending its colonial realm. It sought the help of the feudal lords who were wealthy enough to bail out the Crown. They eventually used their money to demystify the Crown.

Finally, the Crown Proceedings Act of 1947 empowered the people to sue the Crown in civil cases, particularly on torts and contracts. However, the Crown is still immune from criminal suits unless otherwise provided for by the statute.

As time evolved, another equally venerable English maxim – “although the King was under no man, he was under God and the law; for the law maketh the King” – assumed ascendancy.

Verily, the principle that “no man is above the law” challenges the wisdom and validity of the doctrine on presidential immunity from suit in a democratic setting of “government of laws and not of men”. The Constitution and the people make the president.

The rationale for the president not to be distracted by lawsuits in discharging his state duties is not insuperable because: a) he has a retinue of legal experts to represent him in suits of his own making; and b) his high office cannot be higher than the law.

Immunity should not be absolute to bar the immediate prosecution in court of a sitting president who may commit heinous wrongdoings like treason, sedition, plunder, bribery, wholesale corruption, serial violations of human rights, and culpable violation of the Constitution.

Impeachment, being a political exercise, is not a just and viable substitute for instant judicial action when the president commits heinous offenses. The innocence or culpability of the president must not depend on the liberality of partisan allies or the vengeance of political detractors. He must be judged by an impartial magistrate who affords him due process. But he must face the majesty of the law. Moreover, impeachment should not be the sole remedy against a grievously errant president.

The president’s absolute immunity from suit during his tenure can be tempered by legislation since no constitutional provision will be violated. It can also be limited by judicial adjudication in a proper case, free from the constraints of stare desisis or case law, since there should be no idolatrous adherence to precedents.


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