Presidential immunity from suit

The Manila Times reported last Jan. 5, 2021, “Magistrates and legal experts denounced the International Criminal Court (ICC) for pushing an investigation into the alleged extrajudicial killings in the Philippines during the government’s crackdown on illegal drugs and the prosecution of President Rodrigo Duterte as its chief architect.” The report quoted retired Supreme Court justice Noel Tijam that a sitting President has “immunity from suit.” I agree completely that under Philippine law the President enjoys immunity from suit and cannot be investigated or prosecuted for any criminal offense while he remains in office.

The concept of presidential immunity from suit is rooted in the nature of the office of the President, in his power of control over the Executive branch, and in ordinary legislation. First, the 1987 Constitution does not state that the President is immune from suit. However, in the unanimous 2019 En Banc decision in Leila de Lima v. President Rodrigo Duterte, penned by Chief Justice Lucas P. Bersamin, the Supreme Court reaffirmed the President’s immunity from suit, quoting the 2006 case of David v. Macapagal-Arroyo:

“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.”

Second, the President as head of the Executive branch exercises “control” over all executive offices and agencies of the government. The Constitution provides, “The President shall have control of all the executive departments, bureaus, and offices.” In the 2006 case of Rufino v. Endriga, the Supreme Court En Banc, in a decision which I penned, ruled:

“The President’s power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion. In short, the President sits at the apex of the Executive branch, and exercises ‘control of all the executive departments, bureaus, and offices.’ There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President.”

All the investigatory and prosecutory arms of the Government, namely the Philippine National Police, the National Bureau of Investigation, and the Department of Justice, are under the control of the President. Any act or decision of these investigatory and prosecutory arms can be modified or reversed by the President. In short, any act or decision by executive officials to investigate or prosecute the President can be stopped at any time by the President.

Third, while the Ombudsman’s Act of 1989 vests in the Ombudsman disciplinary authority over all appointive and elective officials in the government, this power is expressly withheld “over officials who may be removed only by impeachment or over Members of Congress and the Judiciary.” The Ombudsman may only investigate a serious misconduct of an impeachable officer “for the purpose of filing a verified complaint for impeachment, if warranted.” Thus, the Ombudsman cannot investigate a sitting President for the purpose of prosecuting any criminal act he may have committed. The President must first be removed from office through impeachment by Congress, a highly improbable scenario since the President’s ruling coalition has a supermajority in both chambers of Congress.

In summary, investigatory and prosecutory authorities in the Philippine government cannot—by law, jurisprudence, and practice—investigate or prosecute a sitting President while he remains in office. In the language of the Rome Statute creating the ICC, Philippine authorities are “unwilling or unable to genuinely carry out the investigation or prosecution” of the President for alleged extrajudicial killings while he remains in office.

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