POSTSCRIPT / February 25, 2001 / Sunday


Philippine STAR Columnist

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Presidential immunity mere Marcosian myth

WE’RE disturbed by the divisive and counter-productive debate over two legal points that EDSA II should have rendered moot but apparently failed to: (1) whether Joseph Ejercito Estrada is still president, and (2) whether he enjoys presidential immunity from suit.

Our people’s welfare, if not their sanity, is of such paramount importance that the twin issues should not be left to lawyers and jurists to resolve. We the people should make sure we are also heard.

The lawyers of Polk Street harp on the farcical theory of absolute presidential immunity. We’re afraid that impressionable children, including a few wearing judicial robes, might just start believing it.

We non-lawyers should raise our voices above the legal gobbledygook that threatens to perpetuate the Marcosian myth that a president, whether actor or acting, is totally immune from suit during and after his tenure.

* * *

WE will first make clear our stand on the two points before proceeding. We submit that:

  1. By his acts and pronouncements as construed in the context of EDSA II, President Estrada has tendered a “constructive resignation” that created a vacancy in the office of the President. His belated claim that he just went on leave and is therefore still President is a feeble after-thought that cannot retract or void that resignation.

(Discussed in Postscript of Feb. 8, 2001; also found in Archive of for that date under Opinion)

  1. Presidential immunity as inserted by the dictator Ferdinand Marcos into his martial Constitution was repudiated and scrapped by the sovereign people when they ratified the 1987 (current) Constitution. Whatever vestiges of certain immunities were carried over by tradition could apply, if ever, only to official acts of the President.

* * *

FOR perspective, we reached back to the Malolos Constitution signed in 1899 at the Barasoain church under the first Philippine Revolutionary Government. Its Article 71 provides: “The President of the Philippines shall be only responsible in case of high treason.”

In the succeeding 1935 Constitution adopted under the Commonwealth and carried over, with amendments, to the 1946 Republic, there was no section or any provision whatsoever granting immunity to the President.

Then in 1972, Marcos junked the 1935 Constitution and wrote an entirely new charter, inserting into it a Section 7 in Article VII granting himself immunity from suit.

This “7-7” provision tailor-made for the dictator reads: “The President shall be immune from suit during his tenure.”  By decree, he also sought to extend this immunity to subordinates acting on his behalf.

* * *

THE revolutionary government spawned by EDSA I that sent the dictator fleeing into exile in 1987 scrapped the Marcos Constitution and caused the writing of an entirely new charter with the infamous “7-7” provision on presidential immunity removed.

We think that the removal of that section on presidential immunity is a clear signal, a warning even, to whoever sits as President.

The 1987 Constitution was the charter that was in effect during the short-lived tenure of deposed President Estrada. We are still operating under it.

* * *

ONE does not have to be a million-dollar lawyer, a legal scholar or a venerable justice to see the plain fact that absolute presidential immunity went out with the dictator Marcos.

It is ironic that human rights lawyer Rene Saguisag who won plaudits, deservedly, for battling the dictator now insists on the Marcosian myth of presidential immunity just because he has been retained by Jose Velarde, este, Erap Estrada.

Pakituro nga po, Attorney Rene, where it says in our Constitution that Asiong Salonga, Jose Velarde or Joseph Ejercito Estrada, jointly or individually, enjoys presidential immunity.

Wala po talaga sa Saligang Batas. Presidential immunity is nowhere in the Constitution. It was only in the perverted mind of the dictator Marcos and in his Constitution that was inadvertently ratified in assemblies where innocent people were asked to raise their hands if they wanted cheap rice.

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IT may not be in the Constitution, lawyers of Jose Velarde insist, but presidential immunity is with us “by tradition.”

Granting for the sake of humoring its proponents that a President, by Marcosian tradition, enjoys certain immunities, we say that this privilege (not a right) cannot be absolute.

We could grant that a president must be allowed reasonable executive discretion so his official decisions made in good faith are not influenced by threats of lawsuit. A president to be effective must have certain guarantees that he would not be harassed by court action for his official acts.

* * *

WHEN the President, for instance, approves a controversial foreign loan agreement, or signs an unpopular treaty, or appoints a movie stuntman as a diplomat, vetoes an essential budget item, or pardons a convicted cannibal, he should be granted good faith and immunity from suit for those official acts.

But if, on the other hand, the Chief Executive rapes a member of the Palace household, he cannot claim immunity just because he is president and horny. Raping housemaids is not part of his official duties.

Or if the President swindles a business associate, extorts or accepts bribes and jueteng payola and hides the dirty millions in secret bank accounts under fictitious names, we submit that he cannot claim immunity – even if he is still sitting as President.

* * *

IN the same way, plunder, graft and corruption, and bribery — for which information has been filed against Erap with the Ombudsman — are personal offenses that cannot be covered by immunity even if Erap were still President.

We don’t know if Erap changed the rules when he was in office, but we’re under the impression that raping the economy and taking kickbacks and bribes are still not among the official duties of a president.

The more basic reason, of course, why Erap has to answer for his crimes is that an enraged citizenry has deleted Marcosian immunity from the new Constitution that they ratified in 1987. Besides, crime does not, or should not, pay.

* * *

PRECISELY, the Constitution now talks solemnly of accountability and equality before the law.

“Public office is a public trust,” says Section 1 of Article XI. “Public 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.”

With officials being accountable to us the people, we cannot accept the claim of Erap Estrada that he should not be, like the rest of officialdom, made to answer for crimes committed against the very people he is sworn to serve. The President is not above the law.

* * *

WE’RE not alone, by the way, in holding the view that presidential immunity is not absolute or all-encompassing.

In May 1997, the US Supreme Court ruled that a sitting president does not enjoy presidential immunity from suit over conduct not related to his official duties.

The ruling was handed down in a civil suit brought by Paula Corbin Jones against President Bill Clinton over misconduct allegedly committed by Clinton when he was still governor of Arkansas.

* * *

THE charges leveled against Erap assume a more serious dimension because the accused is the highest official of the land who is sworn to execute the law and do justice to every man.

The claim of immunity by Erap could even constitute an aggravating circumstance since it appears that he was emboldened by the thought that he was untouchable, that he was shielded by impregnable immunity.

It is significant that Erap, the unrepentant offender, does not deny committing the alleged acts. He is just saying that he is immune from suit.

Once his immunity line of defense is breached, the rest of the campaign to convict him should proceed faster because of his implied admission.

* * *

FROM our email box we retrieved this note from reader Frank Luna in Canada:

“I foresee the Supreme Court deciding the issue of legitimacy in favor of Ms Gloria Macapagal Arroyo, ironically, based on its own precedent in the so-called martial law cases.

“The Supreme Court ruled then that there was no ‘insuperable bar’ to the exercise by Marcos of extraordinary powers after ‘the issue has been plowed back to the seat of sovereignty.’

“In Mr. Estrada’s case, it was indubitable that the people exercised their sovereign will by kicking him out of Malacañang, and whether or not he tendered his resignation, formally or informally, directly or collaterally, overtly or constructively, before, during or after he was booted out, ad infinitum, ad nauseam, is not, as lawyers put it, the lis motam of the controversy.

“Mr. Estrada was evicted, forcefully and unequivocably — sa madaling salita, sinipa — from Malacañang. I’m sure even lawyers, including Saguisag ng binasurang Pangulo, would agree from experience, or would take judicial notice, that recalcitrant tenants normally do not and are not expected to sign formal surrenders of lease.”

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(First published in the Philippine STAR of February 25, 2001)

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