Crosscurrents
Presidential immunity from suit
Antonio T. Carpio
The Constitution of the Philippines takes center stage in the coming
months. First, there is the impeachment trial of President Joseph Estrada in
accordance with the Constitution. On the impeachment, the controversial
issue involving the Constitution is the interpretation of the two-thirds vote
needed to convict the President.
Second, there is the question whether a sitting President can be
criminally prosecuted for economic plunder, bribery, graft and corruption,
and other criminal acts during his tenure in office. This question tests the
nature and extent of the doctrine of presidential immunity under the
Constitution.
For now we shall examine the second constitutional issue presidential immunity from suit. This doctrine is not expressly written in
the 1987 Constitution, contrary to the claim of Estrada’s Press Secretary
Dong Puno. Indeed, the Constitutional Commission that framed the present
Constitution deliberately removed any reference to presidential immunity in
the present Constitution.
The 1973 Constitution expressly stated that “the President shall be
immune from suit during his tenure.” The members of the Constitutional
Commission, remembering how former President Ferdinand Marcos
entrenched himself in power, intentionally deleted this provision in the 1987
Constitution.
The motive of the Constitutional Commission was clear - to dilute the
powers of the President and make him more accountable to the people.
Does this mean then that the President may now be subject to civil and
criminal suits while in office? Is there no longer any presidential immunity
under the present Constitution?
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To answer this question, we have only to look back to the 1935
Constitution which did not contain any provision on presidential immunity.
As we all know, we adopted our 1935 Constitution from the U.S. Federal
Constitution which also does not contain any provision on presidential
immunity.
In the United States, despite the absence of an express constitutional
provision on presidential immunity, the courts have developed the doctrine
of presidential immunity from suit on the basis of the separation of powers
among the executive, legislative and judicial branches of government.
Under the separation of powers, neither the judiciary nor the
legislature has coercive power over the President when he acts within the
limits of his constitutional authority. Applied to lawsuits, this rule means
that courts have no jurisdiction over the President when he is sued for acts
performed pursuant to his official duties.
As early as 1905, our own Supreme Court had recognized the doctrine
of presidential immunity from suit as developed in the United States. When
we adopted the 1935 Constitution, we also adopted the American doctrine of
presidential immunity even if the 1935 Constitution was silent on
presidential immunity.
The framers of the 1935 Constitution did not deem it necessary to
expressly include a provision on presidential immunity because this doctrine
was already part and parcel of the doctrine of separation of powers which
was the bedrock of the government structure under the 1935 Constitution.
As it was in the 1935 Constitution, so it is now in the 1987
Constitution. The mere absence of an express provision on presidential
immunity cannot negate the doctrine of presidential immunity which is
rooted in the separation of powers. The doctrine of separation of powers is
as valid and effective in the 1987 Constitution as it was in the 1935
Constitution.
Clearly, the doctrine of presidential immunity is part of the present
Constitution, even if the Constitutional Commission deliberately removed
any reference to it in the present Constitution. The only issue is the nature
and extent of the presidential immunity - specifically, whether this
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immunity extends to criminal acts committed by the President while in
office.
To determine the nature and extent of presidential immunity, we must
look to American jurisprudence because of the paucity of decided cases in
the Philippine on this issue. The leading and most recent case in the United
States on presidential immunity is Clinton v. Jones (1997), decided by the
U.S. Supreme Court.
Paula Jones sued President Bill Clinton after Clinton was elected
President, for “abhorrent sexual advances” allegedly made by Clinton on
Jones when Clinton was still State Governor of Arkansas. Clinton raised as
a defense presidential immunity, claiming that he could not be sued while in
office and the suit must be dismissed or suspended until his term as
President ends.
This case had two significant undisputed facts.
First, the acts
complained of were admittedly not part of Clinton’s official duties as
President of the United States. Second, the acts happened long before
Clinton became President.
The U.S. Supreme Court ruled that a sitting President enjoys no
immunity from suit for acts arising from “unofficial conduct”, whether
committed before or during office. “We have never suggested that the
President, or any other official, has an immunity that extends beyond the
scope of any action taken in an official capacity.”
According to the Supreme Court, the “principal rationale for affording
certain public servants immunity from suits for money damages arising out
of their official acts is inapplicable to unofficial conduct. x x x The point of
immunity for such officials is to forestall an atmosphere of intimidation that
would conflict with their resolve to perform their designated functions in a
principled fashion.”
The Supreme Court added: “That rationale provided the principal
basis for our holding that a former President of the United States was
entitled to absolute immunity from damages predicated on his official acts.
Our central concern was to avoid rendering the President unduly cautious in
the discharge of his official duties.”
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But, as clearly ruled by the Supreme Court, “this reasoning provides
no support for an immunity for unofficial conduct.” Clinton’s “effort to
construct an immunity from suit for unofficial acts grounded purely in the
identity of his office is unsupported by precedent.” Indeed, the Supreme
Court quoted with approval the ruling of the Court of Appeals that there is
“no case in which any public official ever has been granted any immunity
from suit for his unofficial acts.”
Accepting over Php400 million in bribe money from jueteng lords,
pocketing tax kickbacks amounting to Php130 million, and brazenly
committing many other crimes - these are obviously not part of the official
duties or acts of the President the Philippines. Estrada enjoys no immunity
whatsoever for these criminal acts.
The extraordinary political crisis besetting the nation is testing the
three great departments in government - the executive who is under
impeachment for various offenses, the legislature which will either convict
or acquit the executive, and the judiciary which must interpret the
Constitution and whose interpretation may tilt the balance either for or
against the executive.
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