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Andres on Immunity: The Constitutional Case Against Protecting Former Presidents

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Louis ‘Barok’ Biraogo

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Andres on Immunity: The Constitutional Case Against Protecting Former Presidents

By Louis ‘Barok‘ C. Biraogo — December 21, 2022

IF NO one is above the law, why should a former president be an exception? Justice Undersecretary Jesse Andres’ bold assertion that presidential immunity ends with the presidency has reopened a Pandora’s box of questions about accountability, executive privilege, and impunity in the Philippines. This commentary delves into the seismic legal and societal shifts that could arise from this interpretation.

Examining the Legal Basis: Andres’ Reasoning and the Philippine Legal Framework

Undersecretary Andres’ assertion is firmly grounded in the text and interpretation of the 1987 Philippine Constitution. Article VII, Section 18 implicitly provides immunity to the sitting president to enable the executive to perform the demanding functions of the office without distractions from lawsuits. However, this immunity is not explicitly extended to former presidents.

The concept of immunity for sitting heads of state stems from the doctrine of executive privilege, designed to protect the independence and effectiveness of the executive branch. In the Philippine context, immunity has been traditionally understood as functional rather than personal. Once a president steps down, they are no longer shielded from legal accountability for acts committed during their term, particularly those that constitute violations of domestic or international law.

Key legal precedents bolster Andres’ argument:

  • Estrada v. Desierto (2001): While the Supreme Court affirmed presidential immunity for acts during a president’s term, it also clarified that this immunity does not shield a former president from criminal prosecution after leaving office.
  • Marcos v. Manglapus (1989): Though primarily addressing the return of Ferdinand Marcos, the Court emphasized the principle of accountability for public officials.

Andres’ invocation of crimes against humanity and violations of international humanitarian law adds another layer. The Philippines is a party to the Rome Statute of the International Criminal Court (ICC) (despite its controversial withdrawal under Duterte). Domestic incorporation of international humanitarian law, through Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), provides a robust legal framework for prosecuting such offenses.

The Case for Justice: Holding Presidents Accountable After Leaving Office

  1. Strengthening Rule of Law: Allowing former presidents to be held accountable reinforces the constitutional principle that no one is above the law. It deters abuses of power and provides a legal recourse for victims of state-led atrocities, such as the thousands of extrajudicial killings during Duterte’s “war on drugs.”
  2. Fighting Impunity: Prosecuting a former president sets a critical precedent for future leaders, signaling that actions taken under the guise of executive authority can and will face legal scrutiny.
  3. Compliance with International Obligations: Pursuing cases against Duterte aligns with the Philippines’ obligations under international law. Failure to prosecute could expose the country to international criticism or action, particularly from bodies like the ICC.

The Other Side of the Coin: Counterarguments and Concerns About Removing Immunity

  1. Political Retaliation: Critics argue that removing immunity for former presidents could lead to politically motivated lawsuits. This might destabilize the political landscape, with successive administrations weaponizing the judiciary against their predecessors.
  2. Institutional Overreach: The assertion raises concerns about judicial encroachment on executive authority. Some fear it might upset the balance of power between the branches of government, particularly if politically sensitive cases dominate the courts.
  3. Executive Disincentives: Stripping away post-term immunity might deter future presidents from making bold or controversial policy decisions, fearing legal consequences after their term.

Beyond the Law: Practical and Societal Implications of Holding Presidents Accountable

  1. Public Trust in Institutions: The prosecution of Duterte could restore public faith in the judiciary and reinforce the idea that justice applies universally. However, a failure to ensure due process or a perception of political bias could erode trust further.
  2. Behavior of Future Presidents: Legal accountability may encourage future presidents to act with greater transparency and caution, fostering a culture of responsibility and respect for human rights.
  3. Effectiveness of Legal Mechanisms: The Philippine judiciary will be tested on its capacity to handle politically charged cases fairly and efficiently. The outcome will either bolster or diminish confidence in the justice system.

3. The Decision’s Impact and What Comes Next: Broader Implications and Recommendations

This assertion has the potential to reshape the Philippine legal and political landscape significantly. To maximize its impact while minimizing risks, several steps should be taken:

  1. Ensure Judicial Independence: Strengthen safeguards to insulate the judiciary from political interference, particularly in high-profile cases involving former officials.
  2. Clarify Immunity Provisions: Amend the Constitution or relevant laws to explicitly define the scope and limitations of presidential immunity. Clearer rules could prevent future disputes.
  3. Strengthen Legal Infrastructure: Equip the judiciary and prosecution services with the resources and training needed to handle complex international law cases, ensuring adherence to due process.
  4. Engage Civil Society: Foster public discourse on accountability and human rights to sustain momentum for reforms.

Conclusion

Justice Undersecretary Jesse Andres’ assertion challenges the Philippines to confront its past and redefine its future. Holding a former president accountable isn’t just about legality—it’s about restoring faith in governance and proving that no one is above the law. The time has come to turn principles into action and ensure that justice is served, not just promised.

Louis ‘Barok‘ C. Biraogo

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