Topic: Presidential Immunity

A hot topic these days is the undying claim of Joseph Estrada that he is still the legitimate President of the Philippines, albeit, on leave. It is worthy to note, however, that this amusing claim of Erap is not aimed at regaining the powers and perks of the Presidency but only to avail himself of the immunity from suits which Presidents of the Republic enjoy during their tenure. Regardless of the legality of Erap's claim  we shall now examine the intricacies of Presidential immunity: 


It is interesting to note that the 1987 Constitution does not provide for presidential immunity from suit.  Unlike congressional immunity, presidential immunity is not expressly stated nor prescribed by the Constitution. Basis for the immunity is only found in jurisprudence, both in the U.S. and the Philippines, which, by virtue of Article 8 of the Civil Code, "forms a part of the legal system of the Philippines."

In the case of In re: Bermudez,  (1986), the Supreme Court expressly held that, “Incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.”

The purpose of the immunity was discussed in the case of  Soliven, et al., vs Judge Makasiar (1988), where the Supreme Court stated 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.


In the same case of Soliven, et al., vs Judge Makasiar (1988) petitioners argued that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit". He contended that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.

In turning down petitioners argument, the Court held that the 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.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person.


On 27 May 1997,  a unanimous United States Supreme Court held in Clinton v. Jones that the Constitution does not protect a sitting President from a lawsuit that is predicated on private, pre-presidential conduct. Basically, the Court stated that an incumbent was liable to a suit for damages, based on actions taken before his term began. The Court held further that an official's absolute immunity should extend only to acts in performance of particular functions of his office because immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it.

Further,  an official’s absolute immunity extends only to acts in performance of particular functions of his office.  The doctrine of immunity finds no application and cannot be invoked in cases where the public official is being sued in his private capacity or as an ordinary citizen.  The mantle of protection afforded public officers is removed the moment they are sued in their individual capacity. 

This usually arises where the government official acts without authority or in excess of the powers vested in him or his office such as when he has acted with malice and in bad faith, or beyond the scope of his authority or jurisdiction. 

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