Can the Philippine President be sued criminally, civilly or administratively during his/her tenure or incumbency? The answer is a big No. 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.[1]
In this week’s edition, we will discuss the origin and the rationale behind such doctrine as well the current state of presidential immunity in the Philippines.
The origin of such doctrine was lengthily discussed in De Lima vs Duterte[2], to wit:
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 quad principli placuit legis habet (what pleases the prince is law). These two principles remained dormant until their revival in feudal Europe, particularly in England.
In The Origins of Accountability: Everything I know about Sovereigns’ Immunity, I learned from King Henry III, Professor Guy Seldman observes that the concepts under Roman Law, Church law, traditional-customary-tribal laws, and laws of the feudal system fused together to form the principle that has been traditionally recognized as the origin of the present day’s concept on executive immunity from suit – the principle that is expressed in the maxim “the king can do no wrong.” He explains the development of the maxim “the king can do no wrong” in England in this manner:
The maxim has actually stood for four different propositions at various points in English legal history.
The first is that the King is literally above the law and cannot do wrong by definition; this understanding of the maxim reached its zenith in the 7th century under the banner of the “divine right of Kings”. A second meaning is that even if the King’s actions are not lawful by definition, there is no remedy for royal wrong doing through ordinary legal channels; one might term this a “procedural” or “remedial” understanding of the maxim. A third meaning, which actually represents the true historical origin of the maxim, is that the King has no power or capacity to do wrong; this was literally the case with Henry III, who assumed the Kingship while in his minority. A fourth meaning is precisely the opposite of the first; it means that the King is eminently capable of doing wrong but cannot do so lawfully. One can meaningfully combine this understanding with the second “procedural’, understanding to yield a legal regime in which royal acts can meaningfully be described as unlawful but are not subject to remedies by the ordinary law courts. In such a scheme, however, subordinates who follow the King’s orders may act at their peril.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance of distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.
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 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. 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.
Presently, the concept of presidential immunity is not explicitly spelled out in the 1987 Constitution. However, the Supreme Court has affirmed that there is no need to expressly provide for it either in the Constitution or in law. The reason for such omission has been clarified by the exchange of Mr. Suarez and Fr. Bernas on the floor of the 1986 Commission: xx. FR. BERNAS: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit.
[1] David vs Macapagal-Arroyo, G.R. No. 171396
[2] G.R. No. 227635, October 15, 2019