POSTSCRIPT / September 6, 2015 / Sunday


Opinion Columnist

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Immunity from suit is a Marcosian relic

I AM ONE of those who are not comfortable seeing the unchallenged acceptance of the theory that the President of the Philippines is immune from suit.

We find it hard to accept the grotesque fact that the President who is sworn to “preserve and defend its Constitution, execute its laws” is raised above the law and exempted from its processes.

Being a non-lawyer and finding it too expensive consulting one, I fell back on the basic law, the 21,540-word Constitution. Poring over it again last night, I could not find any section saying that the President of the Republic cannot be sued, or that he is immune from suit.

Elsewhere, however, I also came upon opinions that since the President is the pater familias of the nation, some kind of general manager who must make hard decisions for everybody, he must not be scared into inaction by the possibility of making wrong or unlawful decisions.

So we vaccinate him with immunity? Such an assurance of iron-clad immunity breeds impunity.

Teflon-like immunity may make some sense in the hurly-burly world of business, but not in a decent democratic government.

We may grant the President extraordinary leeway, especially if he is of proven competence and integrity, but good sense dictates that we be careful about giving prior and plenary absolution from willful and grievous violations of law.

Precisely the threat of sanctions helps ensure the President’s sticking to his oath to act always within the law. Also helping motivate him to stick to the rules is the time-tested mechanism of checks and balances in government.

Impeachment just another option

WHILE there is no provision in the Constitution explicitly granting the President immunity from suit, there are some for his impeachment based on specified grounds.

In Article XI (Accountability of Public Officers), Section 2 says: “The President (among a few others listed ) may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”

Section 3.6 under the same Article XI says that the conviction by the Senate sitting as an impeachment court shall be upon concurrence of at least two-thirds of all the members of the Senate.

Then Section 3.7 says: “Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.”

That last part of Section 3.7 sounds like an acceptance of the possibility, even the desirability, of an impeachable official’s being also “liable and subject to prosecution, trial, and punishment.”

Immunity was only in Marcos charter

THE SCHOOL pushing the “immunity from suit” idea may say that the impeachable official’s being open to prosecution comes only after his impeachment, conviction and ouster.

But how come that Article XI (on accountability) of the 1987 Constitution, which is very detailed and encompassing, failed to say so?

It was actually the 1973 Constitution, not the current 1987 charter, that spoke – in clear, specific terms — of the President being immune from suit.

Section 15 of Article VII of the 1973 Constitution provides: “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. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.” (The incumbent referred to was Ferdinand E. Marcos).

It is significant that that Section 15 of the older Marcos charter granting presidential immunity from suit was not copied or transported to the current 1987 Constitution.

One logical conclusion from that deliberate omission is that the enlightened framers of the 1987 Constitution did not want to grant, or were at least wary of giving, the President that Marcosian relic of immunity from suit.

Morales’ probe of Aquino pointless if…

THE REOPENING of this subject was inspired by the statement of Ombudsman Conchita Carpio-Morales that her office was investigating President Noynoy Aquino (together with Budget Secretary Butch Abad) on their creation and use of the unconstitutional Disbursement Acceleration Program.

It would be pointless for Morales to investigate the President’s action and then stop short of prosecuting him despite finding of probable cause just because of that theory of presidential immunity from suits.

The Ombudsman need not wait for the President’s unlikely impeachment and removal from office before she files charges. If the evidence and the pertinent law argue for criminal prosecution, the Ombudsman should file the proper case right away with or without impeachment.

Hypothetically, the Ombudsman should not adopt the accused’s anticipated defense of presidential immunity. She should just leave it to the President to question before the Court his criminal prosecution prior to impeachment.

The Supreme Court itself ordered the prosecution arms of the government in July 2014 to investigate the authors, proponents, and implementors of DAP as it declared unconstitutional vital components of the program.

The DAP, which Malacañang said was intended to boost development, sparked a controversy after Sen. Jinggoy Estrada revealed that several senators received P50 million to P100 million in DAP funds after the conviction of Chief Justice Renato Corona by the Senate impeachment court.

(First published in the Philippine STAR of September 6, 2015)

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