THE QUEEN CAN DO NO WRONG?

 

Okay.  Gloria Macapagal-Arroyo should be made answerable for this and that scandal.  She should be investigated and eventually prosecuted for graft and corruption, bribery or maybe even plunder and for all other laws that she and her cohorts may have violated.  Problem is, we cannot do all that while she is the sitting President.  She is IMMUNE FROM BOTH CIVIL AND CRIMINAL SUITS until June 30, 2010.  And whether we agree or not, her presidency has already been declared legitimate by the Supreme Court in 2001 and by the Abalos-Garci Comelec in 2004.  She will not resign and it looks like the AFP under General Esperon is not about to succumb to the wishes of People Power hopefuls.

WHAT THEN DO WE NEED TO KNOW ABOUT A PRESIDENT’S PRIVILEGE OF IMMUNITY FROM SUIT? 

Here are some of the anticipated questions and answers:

1.  What is the historical basis of the doctrine of executive immunity? 

The logical basis for executive immunity from suit was originally founded upon the idea that the “King can do no wrong.”  The concept thrived at the time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and governmental power resides in the throne. During that historical juncture, it was believed that allowing the King to be sued in his court was a contradiction to the sovereignty of the King.  (R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303, 1959) 

2.  What happened to the medieval concept of the “King can do no wrong” with the advent of democratic thoughts and institutions? 

The Supreme Court said that although the doctrine had lost its moral force, it found its way of surviving in modern political times, retaining both its relevance and vitality. Executive immunity has now become necessary for a variety of reasons.  The doctrine, among others, is rooted in the constitutional tradition of separation of powers (Nixon v. Fitzgerald, 451 U.S. 731, 1982).  The separation of powers principle is viewed as demanding the executive’s independence from the judiciary, so that the President should not be subject to the judiciary’s whim. Moreover, by reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention (Soliven v. Makasiar, 167 SCRA 393, 198 . 

3.  How and when did this concept of executive immunity emerge in our jurisdiction? 

The principle first came out in the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield, 16 Phil 534, where the Supreme Court at that time, speaking through Justice Johnson, held that: 

“The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties.” 

The decision, however, failed to mention whether a chief executive is also immune from criminal prosecution during his incumbency.  It only emphasized the possible consequences that may result if a chief executive is deprived of such immunity, such as:  “action upon important matters of state (will be) delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect (would be) engendered for the person of one of the highest officials of the State and for the office he occupies; (there will be) a tendency to unrest and disorder resulting in a way, in a distrust as to the integrity of government itself.” 

4.  Did the 1935 Constitution contain any specific provision on presidential immunity? 

No. The 1935 Constitution was silent on the matter of executive immunity.  

5.  How about under the 1973 Marcos Constitution?  Was there ever a provision on executive immunity? 

Yes.  In 1981, Article VII, Section 17 was amended in this wise: 

“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 effects of such amendment were that first, the immunity applied to both civil and criminal cases and that second, it covered not only the official acts of the President but also the acts of others who acted upon his specific orders.  The late dictator had probably anticipated a barrage of civil and criminl suits the moment he was no longer in power and true enough, some of those cases are still pending resolution up to this day.  This amendment, if not for his ouster in 1986, would have saved the day for him and Imelda. 

6.  Does the 1987 Constitution have any provision on executive immunity similar to that of the 1973 Constitution? 

No.  The Constitutional Commission created by President Aquino to formulate the draft of the 1987 Constitution did not bother to reenact the provision on executive immunity as found in the 1973 charter.  Fr. Joaquin Bernas, who was one of the commissioners,  saw no need to do so because it is already implicitly recognized in jurisprudence and in the principle of separation of powers that a President, during his tenure, is immune from suit. 

CONCLUSION: 

• A President cannot be prosecuted administratively, civilly and criminally during his tenure except by impeachment under Article XI, Section 2 of the 1987 Constitution; 
• The only reason why a President cannot be prosecuted during his tenure is to allow him to perform the duties of his office without having to attend to possible suits that may arise from such performance; and
• The immunity ceases once a President resigns, is removed from office (either intra-constitutionally or extra-constitutionally) or when his term of office expires. 

But do you agree to the proposition of Ex-Senator Jovito Salonga that while President Arroyo may be immune from suit, she is not immune from investigations? 

What do you think? 

(reference:  Estrada vs. Desierto, G.R. Nos. 146710-15. March 2, 2001)