Presidential immunity: a catch-22

The public admission of a confessed leader of the much-storied Davao Death Squad or DDS raises the specter of criminal prosecution of an incumbent president. No less than the President challenges his detractors to bring the suit to court. Haling an incumbent president to court to make him or her account for purported criminal misdeeds before becoming president is of course easier said than done.

A president enjoys immunity during his or her tenure, which insulates him or her from criminal prosecution. Presidential immunity is a doctrine in constitutional theory recognized in most democracies with a presidential form of government. The doctrine need not be written in a constitution.

In David v. Macapagal (2006), the Supreme Court explains the applicability of the doctrine despite its textual absence in the Philippine Constitution as follows: “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. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.”

Advocates for presidential accountability, in light of the confession of the DDS leader notably in the murder of popular radioman Jun Pala, face legal hurdles aside from presidential immunity. The only way to make an incumbent president account for a criminal act is to first unseat and then prosecute him or her when he or she is out of office. Impeachment is a constitutional process which allows the removal of a president from office. It is initiated at the House of Representatives and culminates in the filing of an impeachment complaint in the Senate. The latter chamber will convene as a court and determine the culpability of the president and his or her fitness to continue in office. Impeachment will be hard to come by because both legislative chambers are dominated by presidential allies.

Another hurdle that presidential accusers have to contend with is the jurisdiction of the government agency that will investigate the alleged crimes. A crime imputed to a city mayor in relation to his or her office falls within the primary jurisdiction of the Office of the Ombudsman to investigate and prosecute because the crime is cognizable by the Sandiganbayan. The Ombudsman Act of 1989, however, bars the Ombudsman from conducting an investigation against an impeachable official during his or her tenure except for the purpose of impeachment.

There is also a genuine issue of whether or not the Ombudsman can investigate the President for purposes of impeachment upon acts supposedly committed by him in the past when he was still a city mayor. The answer would be pretty obvious; impeachment is a constitutional regime to exact accountability from a president while in office. It cannot be used to make a president account for purported misdeeds before he was elected to the presidential office.

With these legal hurdles, it looks like those who demand accountability from the President for his acts purportedly done while a city mayor might just have to be content with the glare of media cameras and the blare of sound bites in a public interview or forum. Prosecution within the domestic legal framework is almost impossible because these advocates certainly face a formidable Catch-22.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.