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Executive immunity

opinion / Columnists
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Sounding Board

Executive immunity

There is no provision in the Constitution clothing the president with immunity from suit. The 1973 Constitution had a specific provision guaranteeing the president’s immunity but the 1987 Constitution did not preserve this provision.

Nevertheless, executive immunity dates back to the cases of governor generals. The subsistence of this doctrine under the 1987 Constitution was confirmed in Soliven vs Judge Makasiar which assumed that indeed the president, Cory Aquino in this case, enjoys immunity. The Court said: “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. 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.”

Does executive immunity continue even after the president leaves office? This came up in the case of Estrada vs Desierto. Estrada, prosecuted for plunder after having left the presidency, pleaded presidential immunity from suit as his defense. Moreover, he claimed that he could not be sued before the impeachment could be terminated. On this matter the Court said: “We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting President. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.”

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Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US vs Nixon, US President Richard Nixon, a sitting president, was subpoenaed to produce certain recordings and documents relating to his conversations with aides and advisers. Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice. President Nixon himself was named as an unindicted coconspirator. President Nixon moved to quash the subpoena on the grounds, among others, that the president was not subject to judicial process, and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in

confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon vs Fitzgerald, the US Supreme Court further held that the immunity of the president from civil damages covers only “official acts.” The US Supreme Court had the occasion to reiterate this doctrine in a case where it held that the US president’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. It declares as a state policy that “(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” It ordains that “(p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.” It sets the rule that “(t)he right of the State to recover properties unlawfully acquired by public officials or employees from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.” It maintains the Sandiganbayan as an antigraft court. It creates the Office of the Ombudsman and endows it with enormous powers, among which is to “(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” The Office of the Ombudsman is also given fiscal autonomy. These constitutional policies will be devalued if we sustain the claim that a nonsitting president enjoys immunity from suit for criminal acts committed during his incumbency.

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