Immunity from good sense

posted July 20, 2021 at 12:30 am
Constitutionally barred from seeking a second term, President Duterte declared over the weekend that he would run for vice president next year because this would make him immune from suit.

Immunity from good sense

This led to a barrage of legal opinions all saying the same thing: Under our laws, the president is immune from suit while he is in office, but the same does not hold true for the vice president.

Former senator and Sorsogon Gov. Francis Escudero got it wrong when he tweeted that “the 1987 Constitution explicitly states that the President is immune from suit”—because it doesn’t. It was the 1973 Constitution that did so. But few would argue his second point, that the vice president does not enjoy the same immunity.

Former Supreme Court Public Information Office chief Theodore Te tweeted: “The VP is not immune from suit by law or by tradition. Non-issue. Non-story.”

National Union of People’s Lawyers’ president Edre Olalia also said the vice president enjoys no immunity from suit, and said Duterte was “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, but only recognized in prevailing jurisprudence, he said.

Of course, if Mr. Duterte doesn’t believe any of these sources, he should consider the legal opinion of his own Justice secretary, Menardo Guevarra, who declared in 2019 that the Constitution does not grant the vice president immunity from suit.

That was the year the administration filed bogus sedition charges against Vice President Leni Robredo and a slew of others that included opposition politicians, human rights lawyers and religious leaders. Those charges were later dropped in February 2020.

As Olalia points out, not a single word in the Constitution gives a president immunity from suit. That provision was in the 1973 Constitution, which became the basis for a number of cases, including David v. Arroyo in 2006, in which the Supreme Court gave immunity to President Arroyo, stating that the doctrine that the president, during the tenure of office or actual incumbency, may not be sued in any civil or criminal case, had been settled, and that there was no need to provide for it in the Constitution or law.

In De Lima v. Duterte in 2019, then Justice Antonio Carpio cited the 2006 decision, saying: “The concept of presidential immunity is not explicitly spelled out in the 1987 Constitution. However, the Court has affirmed that there is no need to expressly provide for it either in the Constitution or in law.”

All this is to say that presidential immunity from suit is supported by legal precedents—but there are no similar bases for granting a vice president immunity from suit, either in jurisprudence or even in the 1973 Constitution.

This throws a spanner in Mr. Duterte’s plan, which he bared in a speech at the PDP-Laban’s national assembly in Clark, Pampanga on Saturday. The President said he was aware of the lawsuits his critics plan to file after his six-year term ends next year, and suggested he would foil them by running for vice president.

“They keep on threatening me with lawsuits and everything. (Former Senator Antonio) Trillanes and itong si (former Supreme Court Senior Associate Justice Antonio) Carpio and his ilk. Panay ang takot sa akin na mademanda ako (They are all threatening to sue me),” he said.

“The law says if you’re president, or vice president, you have immunity. So, I’ll run for vice president and keep running for the same position,” he said in Filipino.

No, Mr. President, the law does not say that.

But beyond the legal flaws, Mr. Duterte’s idea suggests that it is all right for a person to seek public office, not to serve the people, but to protect himself from suit. This is hardly a worthy reason to run. Duterte’s minions will no doubt rush to defend him, say he was joking, or argue that suddenly, the vice president should have immunity after all. In fact, 24 provincial governors have already declared their support for his vice presidential aspirations. Clearly, immunity from good sense is hard at work.

Topics: Rodrigo Duterte , Francis Escudero , Antonio Carpio , 1987 Constitution
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