POSTSCRIPT / July 20, 2021 / Tuesday


Philippine STAR Columnist

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Duterte admits fear of losing immunity

PRESIDENT Duterte admitted Saturday that he wanted to run for vice president in the May 2022 national elections so as to continue enjoying immunity from prosecution by political foes and by victims of human rights abuses committed under his watch.

It is amazing that while other would-be candidates try hard to soar higher in the esteem of the electorate, Duterte seems to relish diving as low as he can by insulting voters with ghastly revelations about his motives.

In a speech at a PDP-Laban party assembly at the Clark Freeport in Pampanga, Duterte said that he considered running for VP to protect himself from lawsuits after opposition figures threatened to haul him to court once he is no longer president.

He said: “Sa totoo lang, yung akin is a reaction to the foolish statements nung mga dilawan, threatening me as if, parang bata ba ako… na pagbaba mo may kaso ka (In truth, my reaction to foolish statements of the ‘yellows’ threatening me as if… it’s like, when I step down I have a case).

Sabi ng batas na kung presidente ka, bise presidente ka, may immunity ka. Eh di tatakbo na lang akong bise presidente (The law says that if you’re president, vice president, you have immunity. Well, I’ll just run for vice president then).”

Duterte did not cite the law giving the vice president, or the president, immunity from suit. There is no law in the books, nor any provision in the Constitution, that grants executive immunity reminiscent of the divine rights of kings.

But, as they say, the law is what the Supreme Court says it is. And the high tribunal has consistently ruled in favor of executive immunity.

The president who is sworn to “execute its laws, do justice to every man” thus gets away with deeds that would normally be deemed as criminal acts, because the Court has elevated him above the law – beyond judicial processes applied to ordinary citizens.

• SC’s rationale for executive immunity

THE SUPREME Court, in dismissing in 2020 a petition for the issuance of a writ of habeas data filed by Sen. Leila de Lima against Duterte, cited the rationale for presidential immunity which it had expanded in David v. Macapagal-Arroyo:

“xxx 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. xxx However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment.”

With due respect, our main concern here is not merely to remove an erring president – but to make him answer fully for his misconduct. Impeachment is mostly a political show of force of the majority in Congress, often leaving us uncertain if indeed justice had been served.

Actually, it was the 1973 Constitution, not the current 1987 charter, that spoke in clear, specific terms in granting the president immunity 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.)

Note that that Section 15 of the older Marcos charter granting presidential immunity was purposely not copied, adopted or transported to the current 1987 Constitution.

Now, what if immunity for the VP as envisioned by Duterte cannot gain legal traction?

One option is for him to cause the suspension of the 2022 elections if he wants to stay beyond his term armored with immunity. Or failing that, he can try ensuring that whoever wins as president is an ally committed to protecting him.

• VP’s immunity from suit assailed

WE are still awaiting the expected Palace clarification or rehash of Duterte’s disclosure of the true motive behind his wanting to become vice president when his term ends. Meantime, his confession – calculated or not – is being debated ad nauseam.

National Union of Peoples’ Lawyers president Edre Olalia said: “Vice president no immunity from suit. That is rewriting the Constitution and even jurisprudence. Only the president is immune from suit and this is not even spelled out in the present 1987 Constitution.”

Albay Rep. Edcel Lagman said: “Duterte’s latest alibi of securing immunity from suits by running for vice president is grossly mistaken, because the vice president is not immune from suits. Only the president enjoys this immunity, not by constitutional mandate but by judicial pronouncements… This immunity is solely from the domestic or national judicial jurisdiction.”

Lagman said Duterte, even now as president, is not immune from processes that the International Criminal Court in The Hague has initiated on his alleged “crimes against humanity”. He pointed out:

“When the Philippines became a State party in 2011 to the Rome Statute, which created the International Criminal Court, it waived any ‘immunity,’ even for the president, and acceded to the jurisdiction of the ICC for covered offenses like crimes against humanity which were committed before the Philippine withdrawal from the Rome Statute became effective in March 2019.”

“Any pretense of presidential immunity from the ICC’s jurisdiction is infirm because such invocation of immunity makes the principle of complementarity unavailable.”

Under the principle of complementarity, the ICC is to complement, not to replace, national criminal systems. It should prosecute cases only when states do not, or are unwilling or unable to do so themselves.

Justice Secretary Menardo Guevarra, when asked by media, also said that under the Constitution the VP is not immune from suit. He clarified that he was not commenting on Duterte’s remarks which, he said, he read as part of a political statement rather than a legal conclusion of the President.

(First published in the Philippine STAR of July 20, 2021)

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