A brief treatise on presidential immunity

Some political underlings of the House speaker have made some insinuations that when former President Rodrigo Duterte proposed that Mindanao should secede from the Philippines he was committing a felony and that he has no more presidential immunity. On the other hand, many Duterte supporters are advancing the view that PRRD cannot be sued because of presidential immunity. Do these people really understand the law?

Let us then discuss this matter of presidential immunity in relation to the US District Appellate Court ruling that former US president Donald Trump is not exempt from election-related criminal felonies while in office. Remember that Philippine laws and jurisprudence are closely intertwined with American laws. The Constitutional Convention of the Philippines copied almost verbatim the 1935 Constitution from the American Constitution, which was adopted on March 4, 1789 except, of course, that the Committee on Style, dominated by Cebuanos, made the 1935 more beautiful but also concise, compact, and comprehensive. The 1987 Constitution is more akin to the 1935 Charter of Quezon and Osmeña, rather than the 1973 Constitution of Marcos and Imelda.

It should be known to all that if we read the 1987 Constitution, there is no explicit provision of presidential immunity. On the contrary, the 1973 Constitution (which was adopted under martial law) provided under Article VII, Section 17 provided that "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." Even that immunity limited itself to official acts, not to criminal acts. Under our present Constitution, therefore, PRRD cannot be considered immune for criminal acts even if they were done by others upon his specific orders. Just like in the US, the appellate court threw out the argument of Trump's lawyers that the president could kill any person and not be held liable for it.

The immunity lasts while the president is in office, but no longer thereafter. In the landmark case of Leila de Lima vs. Rodrigo Duterte, GR No 227635, decided on October 15, 2019, the Supreme Court en banc (all the 15 justices deciding) with the ruling written by Justice Lucas P. Bersamin, the highest court of the land decided unanimously to uphold the presidential immunity of Duterte.

The court explained: The concept of executive immunity from suit for the chief executive can be traced as far back as the days of Imperial Rome. Justinian I noted in his Corpus Juris Civilis that Roman law recognized two principles connected with the development of what we now know as executive immunity from suits --princeps legibus solutus est (the emperor is not bound by statute); and quod principi placuit legis habet (what pleases the prince is law). These two principles remained dormant until their revival in feudal Europe, particularly in England.

Then this principle found its way to American law which we then transported to our own legal system. The Supreme Court cited the earlier case of David vs. Gloria Macapagal Arroyo, where it was ruled: "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 litigation 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."

We should hasten to add that such an almost absolute immunity lasts only while the president is in office. The moment the president leaves office he becomes again citizen Duterte instead of President Duterte. Just like President Trump who became citizen Trump when President Joe Biden assumed the US presidency.

The bottom line is former president Duterte has no more immunity today just like former president Trump. When properly charged by a proper court, they have to appear and face the music. In fact, Congresswoman France Castro already sued Duterte and the lawyers for PRRD did not move to dismiss based on presidential immunity. It was dismissed for lack of merit.