3 November 2019

Mr. X
Legazpi City
Albay

Subject: Is Presidential immunity from suit anathema to the constitutional

principle of public accountability?

Dear Mr. X,
The Presidential immunity from suit is not anathema but rather favors the
constitutional principle of public accountability due to legality held by judicial
decisions, the act of state doctrine, and that the only process to oust the
President is through impeachment.
Basis of Presidential Immunity
Presidential immunity was not specifically mentioned in the present
Constitution which is the 1987 Constitution and even in the 1935 Constitution. It
was however mentioned in the 1973 Constitution Article VII of Section 15. Article
VII of Section 151 states that:
“Sec. 15. The President shall be immune from a 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.”

This provision was completely removed and no longer mentioned in the

present Constitution however it does not necessarily mean that the President is
not immune from suit. The basis of presidential immunity was stated in the ruling
of Solvien v. Makasiar2, Beltran v. Makasiar3, and Beltran v. Executive Secretary
Macaraig4, that:

“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 or 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.

But this privilege of immunity from suit pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf. Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.”

The President as the leader of the nation shall possess the ability to
perform his duties and responsibilities on a daily basis in running the country and
driving it towards economic growth and development. Any hindrance to his work
will only bring about complications in continuing socio-economic developmental
programs for the benefit of the society. Picture out a leader as a bus driver and
the passengers its people. Any detrimental factors that will stop the bus from
moving will only delay the process of development in reaching to its objective to
political, economic, and societal progress.

1
1973 Constitution of the Republic of the Philippines. Official Gazette.
2
G.R. No. 82585, November 14, 1988, The Lawphil Project.
3
G.R. No. 82827, November 14, 1988, The Lawphil Project.
4
G.R. No. 83979, November 14, 1988, The Lawphil Project.
 Regardless of a particular work of the President may be deemed suable
by the public; this was addressed in the David et al. v. Arroyo et al.5 case in
which the President was being sued for numerous reasons such as usurpation of
legislative powers, violation of constitutional right of freedom of the press, and
unconstitutionality of Presidential Proclamation 1017. The case mentioned
presidential immunity as a defense in favor of President Arroyo in which it was
not necessary for the petitioners to implead her as respondent. The Supreme
Court ruled that:

Incidentally, it is not proper to implead President Arroyo as respondent. 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 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. 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.

The Act of State Doctrine

6Former Justice Isagani Cruz, in his book entitled Philippine Political Law,
stated that “an act of State is an act done by the sovereign power of a country, or
by its delegate, within the limits of the power vested in him.” The act of the
President, being the delegate, is also an act of the state within a specified limit of
power vested in him by Congress in the delegation of powers. For delegation to
be constitutional, it should pass the completeness test and the sufficient standard
test. Moreover, Cruz stated that “an act of the State cannot be questioned or
made the subject of legal proceedings in a court of law.” This means that the
President, being the delegate, cannot be questioned or in other words immune
from a suit. The doctrine was further expounded and explained in the ruling of the
Supreme Court in Presidential Commission on Good Government v.
Sandiganbayan7 which states that:
The act of state doctrine is one of the methods by which States prevent their
national courts from deciding disputes which relate to the internal affairs of
another State, the other two being immunity and non-justiciability.

The President, being the delegate, can still be questioned whether or not his acts
are contrary to the duties and responsibilities mandated to him. These acts that
are culpable violation of the Constitution are grounds for the removal of his office
– impeachment.

Impeachment
Lastly, presidential immunity is not anathema to public accountability since
the only process to remove the President from office is through the process of
impeachment due to culpable violation of the Constitution.
The principle of public accountability and the officers who can be
impeached are found under the following provisions in Article XI8:

5
G.R. No. 171396, May 3, 2006, The Lawphil Project.
6
Cruz et al., Philippine Political Law, 2014 Ed., p. 47.
7
G.R. No. 124772, August 14, 2007, The Lawphil Project.
8
Constitution, Article XI.
 “Sec. 1. Public office is a public trust. 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.
Sec. 2. The President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman 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. All other public officers and employees may be removed
from office as provided by law, but not by impeachment.”

According to Former Justice Isagani Cruz, impeachment is generally

understood as a formal process whereby an official is charged and tried and, if
convicted, removed from office, the Supreme Court has referred to it as the
power of the Congress to remove a public official for serious crimes or
misconduct as provided in the Constitution. The grounds for impeachment are
treason under Article 114 of the Revised Penal Code; bribery under Articles 210
– 211, graft and corruption, and betrayal of public trust. If any of the grounds
were committed by the President and was indeed proven liable, then the process
of impeachment is the only way to oust the President.9

The President is indeed immune from any suit 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.

To conclude, the Presidential immunity from suit is not anathema to the

constitutional principle of public accountability. The legality and rationale of the
immunity is proven from different judicial decisions by the Supreme Court in
which it is not necessary to implead the President as a defendant or respondent
to avoid hindrance or distractions to his work. The act of the President, as the
delegate of the State, is also an act of the State thereby it shall not be questioned
or made subject to proceedings. However, this does not necessarily mean that
he is free from all accountability since he can still be removed from office or
ousted through the process of impeachment due to culpable violation of the
Constitution.

I appreciate the opportunity to advise you on such legal matters regarding

presidential immunity. I am open for discussions so please let me know if you
wish to discuss any of these issues further.

Thank you very much.

Very truly yours,

Paul Lydio Anthony S. Ariola

LEGAL COUNSEL

9
Cruz et al., Philippine Political Law, 2014 Ed., p. 730, 738-740.